Exhibit A
Form
of Shareholders Agreement
(See attached.)
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Schedule A
Covered
Shares
|
|
|
|
|
|
|
Class of Capital Stock
|
|
Total
Number
of Shares
Owned by
Shareholder
|
|
|
Class A Common Stock, par value $0.0001 per share
|
|
|
49,067,354
|
*
|
|
Class B Common Stock, par value $0.0001 per share
|
|
|
8,024,419
|
|
-
*
-
Includes
13,614 shares of restricted Class A Common Stock
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Schedule B
Amendment
to Certificate of Incorporation
(See attached.)
Table of Contents
EXHIBIT F
SHAREHOLDERS AGREEMENT
dated
as of
[ · ], 2020
among
SAPPHIRE HOLDING S.À.R.L.,
TDR CAPITAL II HOLDINGS L.P.,
TDR CAPITAL LLP,
and
[COMBINED CORPORATION]
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TABLE OF CONTENTS
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SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "Agreement"),
dated as of [ · ], 2020, is entered into by and among [Combined
Corporation], a Delaware corporation (the "Company"), Sapphire Holding S.à.r.l.
("Holdings"), TDR Capital II Holdings L.P. ("Parent") and TDR Capital LLP, in its capacity
as manager of Parent ("Manager", together with Holdings, Parent and each Person that has executed and delivered to the Company a joinder to this
Agreement in accordance with Section 3.01(d), the "Shareholders").
WHEREAS, the Company and Holdings desire to terminate that certain Shareholders Agreement, dated as of November 29, 2017 (the
"Original Shareholders Agreement"), by and among Williams Scotsman Holdings Corp., the Company, Holdings, Algeco Scotsman Global
S.à.r.l., Algeco Scotsman Holdings Kft., and solely for the purposes of Section 2.01 thereof, Double Eagle Acquisition LLC and Harry E. Sloan pursuant to the terms
thereof;
WHEREAS, the Company, Mobile Mini, Inc., a Delaware corporation ("Mobile Mini"),
and Picasso Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of the Company ("Merger Sub"), have entered into that certain
Agreement and Plan of Merger dated as of March 1, 2020 providing for the merger of Merger Sub with and into Mobile Mini (the "Merger Agreement");
and
WHEREAS, the Shareholders and the Company deem it in their best interests and in the best interests of the Company to enter into this
Agreement to set forth their respective rights, duties and obligations in connection with the consummation of the merger contemplated by the Merger Agreement and Holdings' investment in the Company.
NOW, THEREFORE, for good and valuable consideration the sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.
Capitalized
terms used herein and not otherwise defined shall have the meaning set forth in this Article I.
"15% Condition" has the meaning set forth in Section 2.02(a).
"5% Condition" has the meaning set forth in Section 2.02(a).
"Affiliate" means, with respect to any Person, any other Person that, at the time of determination, directly or indirectly, whether
through one or more intermediaries or otherwise, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), when used with respect to any specified Person, shall
mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Applicable Law" means all applicable provisions of constitutions, treaties, statutes, laws (including the common law), rules,
regulations, decrees, ordinances, codes, proclamations, declarations, orders, writs, judgments, awards, injunctions or rulings of any Governmental Authority.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York, London or Phoenix,
Arizona are authorized or required by law to close.
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"Bylaws" means the bylaws of the Company adopted on November 14, 2019, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the terms of this Agreement or as contemplated in the Merger Agreement.
"Certificate of Incorporation" means the certificate of incorporation of the Company, as filed on November 29, 2017 with the
Secretary of the State of Delaware and as the same may be amended, modified, supplemented or restated from time to time (including as contemplated in the Merger Agreement).
"Change of Control" means any transaction or series of related transactions (as a result of a tender offer, merger, consolidation or
otherwise) that (a) results in or is in connection with any Third Party Purchaser or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of Third Party Purchasers
acquiring beneficial ownership, directly or indirectly, of a majority of the then issued and outstanding Common Stock, (b) results in or is in connection with the sale, lease, exchange,
conveyance, transfer or other disposition (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Company and its Subsidiaries (if
any), on a consolidated basis, to any Third Party Purchaser or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of Third Party Purchasers (including any liquidation,
dissolution or winding up of
the affairs of the Company, or any other distribution made, in connection therewith), or (c) results in the then-current holders of Common Stock collectively owning less than a majority of the
voting power of the surviving entity immediately following consummation thereof.
"Common Stock" means the Class A common stock, par value $0.0001 per share, of the Company and any voting securities issued in
respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, or internal reorganization in the form of merger,
consolidation or exchange, or similar transaction.
"Company" has the meaning set forth in the preamble.
"Competitively Sensitive Information" means Confidential Information designated by the general counsel of the Company that is
competitively sensitive with respect to the applicable recipient in the reasonable discretion of the general counsel of the Company, including without limitation, such Confidential Information with
respect to profit margins, product and brand costs and profit and loss information, price lists, customer and supplier lists and other customer and supplier specific information, customer contracts,
purchase orders, statements of work, plans to increase or reduce production outside of the ordinary course, plans to enter or leave product or geographic markets or similar information, new products
plans, purchasing patterns and pricing, supply arrangements, strategic alliances, promotional plans and advertising plans, to the extent that such information is not aggregated, redacted, anonymized
or otherwise desensitized. For the avoidance of doubt, information regarding the overall financial performance of the Company or aggregated information that does not include any specific information
on any of the matters set forth above shall not be deemed to be Competitively Sensitive Information.
"Confidential Information" means all confidential and proprietary information and data of the Company or any of its Subsidiaries disclosed
or otherwise made available to any Shareholder or any Representative (in such Person's capacity as such) thereof (together, for this purpose, a
"Recipient") pursuant to the terms of this Agreement, whether disclosed electronically, orally or in writing or through other methods made available to
the Recipient. Notwithstanding the foregoing, for purposes of this Agreement, Confidential Information will not include any information (a) already in the public domain at the date of the
transmission, or which has become generally available to the public other than as a result of a disclosure by the Recipient in breach of this Agreement, (b) in the Recipient's possession and
which is not, or was not at the time of acquisition of possession, to the Recipient's actual knowledge, covered by any confidentiality agreements between the Recipient, on the one hand, and the
Company or any of its Subsidiaries, on the other hand, (c) which the Recipient may receive on
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a
non-confidential basis from a third party and which is not, to the Recipient's actual knowledge, covered by a confidentiality agreement with the Company or any of its respective Subsidiaries or
(d) that was provided prior to the date hereof and is subject to the Confidentiality Agreement.
"Confidentiality Agreement" means that certain Mutual Confidentiality Agreement, dated as of April 30, 2019 and amended as of
January 7, 2020, by and among the Company, Mobile Mini and Manager.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Government Approval" means any authorization, consent, approval, waiver, exception, variance, order, exemption, publication, filing,
declaration, concession, grant, franchise, agreement, permission, permit, or license of, from or with any Governmental Authority, the giving notice to, or registration with, any Governmental Authority
or any other action in respect of any Governmental Authority.
"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or
instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi- governmental authority (to the extent that the
rules, regulations or orders of such organization or authority have the force of Applicable Law), or any arbitrator, court or tribunal of competent jurisdiction.
"Holdings" has the meaning set forth in the preamble.
"Holdings Board Member" has the meaning set forth in Section 2.02(a).
"Joinder Agreement" means the joinder agreement in form and substance of Exhibit A
attached hereto.
"Lock-up Period" has the meaning set forth in Section 3.01(a).
"Manager" has the meaning set forth in the preamble.
"Merger Agreement" has the meaning set forth in the preamble.
"Organizational Documents" means the Bylaws and the Certificate of Incorporation.
"Overlapping Business" means any Person that offers products or services that directly compete with products or services offered by the
Company in the same geographic area ("Competing Products"), which Competing Products generate annual revenue that is at least 15% of the consolidated
annual revenue of the Company.
"Parent" has the meaning set forth in the preamble.
"Permitted Transferee" means, with respect to any Shareholder, an Affiliate of such Shareholder, a general partner or manager of such
Shareholder or any of its Affiliates (excluding any other portfolio company thereof), any fund which has the same general partner or manager as such Shareholder or any of their Affiliates, any fund in
respect of which such Shareholder or one of its/their Affiliates is a general partner or manager, including, with respect to Holdings, without limitation TDR Capital Nominees Limited.
"Person" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
"Representative" means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel,
accountants and other agents of such Person.
"SEC" has the meaning set forth in Section 2.03(c).
"Securities Act" means the Securities Act of 1933, as amended.
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"Shareholders" has the meaning set forth in the preamble.
"Subsidiary" means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
"Third Party Purchaser" means any Person who, immediately prior to the contemplated transaction, (a) does not directly or
indirectly own or have the right to acquire any outstanding Common Stock or (b) is not a Permitted Transferee of any Person who directly or indirectly owns or has the right to acquire any
Common Stock.
"Transfer" means to, directly or indirectly, offer, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either
voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar
disposition of, any Common Stock owned by a Person or any interest (including a beneficial interest) in any Common Stock owned by a Person, including establishing or increasing a put equivalent
position, or liquidating or decreasing a call equivalent position within the meaning of Section 16 of the 1934 Act with respect to, any shares of Common Stock beneficially owned by such
Shareholder.
ARTICLE II.
CONFIDENTIALITY; BOARD DESIGNATION; STANDSTILL
Section 2.01 Confidentiality.
-
(a)
-
Each
Shareholder will, and will cause its Representatives to, (i) keep confidential all Confidential Information received by it from the Company or any of its
Subsidiaries or controlled Affiliates and not disclose or reveal any such information to any Person without the prior written consent of the Company, other than to such Shareholder's Representatives
whom such Shareholder determines in good faith need to know such information for the purpose of evaluating, monitoring or taking any other action with respect to the investment by such Shareholder in
the Company, and (ii) use its reasonable best efforts to cause its Representatives to observe the terms of this Section 2.01 as if they were parties to this Agreement; provided, however, that nothing herein will prevent any Shareholder from disclosing any information that
is required to be disclosed by Applicable Law so long as, prior to such disclosure, such Shareholder, unless prohibited by Applicable Law, uses its reasonable efforts to notify the Company of any such
disclosure, uses reasonable efforts (at the Company's sole expense) to limit the disclosure to only those portions that are required to be disclosed under such Applicable Law and maintains the
confidentiality of such other information to the maximum extent permitted by Applicable Law.
-
(b)
-
In
furtherance and not in limitation of the foregoing, each Holdings Board Member shall be permitted to share Confidential Information with Holdings, Parent and
Manager and any of each of Holdings', Parent's and Manager's Representatives or Permitted Transferees; provided that, under no circumstances shall any
Holdings Board Member or any of Holdings, Parent, Manager or any of their respective Representatives or Permitted Transferees be permitted to share Confidential Information with (i) any
portfolio company of Parent or any portfolio company of any of Parent's Affiliates or (ii) any Person who holds a management position in a portfolio company of Parent or a portfolio company of
any of Parent's Affiliates that is an Overlapping Business. Parent agrees on behalf of itself and its Affiliates that any Person who receives Competitively Sensitive Information pursuant to this
Agreement will not, until the date that is 9 months following the latest time at which any such Person received such Competitively Sensitive Information, hold a management position in an
Overlapping Business.
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-
(c)
-
With
respect to Parent, Holdings, Manager and their respective Representatives, including each Holdings Board Member, the restrictions set forth in this
Section 2.01 shall survive until the date that is two years after the date on which the 5% Condition is no longer satisfied.
-
(d)
-
Notwithstanding
anything to the contrary in the foregoing, the parties acknowledge that each Shareholder and its Affiliates, partners, officers and employees may
serve as directors (or in similar roles) of portfolio companies of Parent or its Affiliates ("Dual Role Persons"), and such Shareholder shall not be
deemed to be in breach of its obligations in this Section 2.01, and any such portfolio company will not be deemed to have received Confidential Information, solely due to the dual role of any
such Dual Role Person so long as such Dual Role Person does not (i) provide or otherwise communicate any Confidential Information to such portfolio company or the directors, officers,
employees, consultants or advisors of any such portfolio company, other than another Dual Role Person, (ii) direct or encourage such portfolio company to act with respect to any Confidential
Information or (iii) use such Confidential Information other than in connection with evaluating, monitoring or taking any other action with respect to the investment by such Shareholder in the
Company; provided that no officer or employee of any Shareholder or any of its Affiliates who has received any Competitively Sensitive Information may
serve as director (or in similar role) of any portfolio company of Parent or any of its Affiliates that is an Overlapping Business for as long as such information received remains Competitively
Sensitive Information. For purposes of this Section 2.01(d), the Company shall, upon request of Parent, use reasonable efforts to aggregate, anonymize, redact or otherwise desensitize
Confidential Information to the extent practicable such that it no longer constitutes Competitively Sensitive Information.
-
(e)
-
Notwithstanding
anything to the contrary provided herein, any partner, officer or employee of any Shareholder or any of their respective Affiliates may serve as a
director (or in similar role) of a portfolio company of any Shareholder or any of its Affiliates that is an Overlapping Business (provided that, for purposes of this Section 2.01(e), the
reference to "is at least 15%" in the definition of Overlapping Business shall be deemed to be a reference to "represents any"), and serve as a Holdings Board Member; provided that, in such
circumstances, the Company shall have the right, in the reasonable discretion of the general counsel of the Company, to deny any
such Holdings Board Member access to any Competitively Sensitive Information. For purposes of this Section 2.01(e), the Company shall, upon request of Parent, use reasonable efforts to
aggregate, anonymize, redact or otherwise desensitize Confidential Information to the extent practicable such that it no longer constitutes Competitively Sensitive Information.
-
(f)
-
Nothing
in this Section 2.01 shall prohibit any Shareholder or any of its Affiliates from acquiring or owning securities or other investments in any
Overlapping Business.
Section 2.02 Board
Designation.
-
(a)
-
From
and after the date hereof, (i) for so long as Holdings, together with its Permitted Transferees, beneficially owns at least 15% of the outstanding shares
of Common Stock (the "15% Condition"), Holdings shall have the right to require the Company to nominate, and use its best efforts to have elected to the
Board at any annual or special meeting of the Company's stockholders, two individuals designated by Holdings and who satisfy the director qualification criteria set forth in the charter of the
Nominating and Corporate Governance Committee of the Company (each, a "Holdings Board Member"), (ii) for so long as Holdings, together with its
Permitted Transferees, beneficially owns at least 5% but less than 15% of the outstanding shares of Common Stock (the "5% Condition"), Holdings shall
have the right to require the Company to nominate, and use its best efforts to have elected to the Board at any annual or special meeting of the Company's stockholders, one Holdings Board Member. The
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initial
Holdings Board Members shall be Gary Lindsay and Stephen Robertson. If neither the 15% Condition nor the 5% Condition is satisfied, Holdings shall not have the right to designate a Holdings
Board Member to the Board. Upon being appointed as a Holdings Board Member, such Holdings Board Member shall execute a resignation letter, tendering his or her resignation from the Board, effective
upon the 15% Condition or the 5% Condition, as applicable, no longer being satisfied; provided, that if Holdings no longer has the right to designate a
Holdings Board Member because the 15% Condition is no longer satisfied, Holdings shall be entitled to designate which Holdings Board Member shall resign.
-
(b)
-
If,
as a result of death, disability, retirement, resignation, removal (with or without cause) or otherwise, there shall exist or occur any vacancy on the Board with
respect to a Holdings Board Member, (i) Holdings may designate another individual who satisfies the director qualification criteria set forth in the charter of the Nominating and Corporate
Governance Committee of the Company (the "Replacement Nominee") to fill such vacancy and serve as a Holdings Board Member and (ii) the Company
will cause the Board to promptly appoint the Replacement Nominee to the Board.
Section 2.03 Standstill
Restrictions. From the date of this Agreement and until the date on which Parent ceases to beneficially own a number of shares of Common Stock that constitutes
less than 5% of the outstanding Common Stock (the "Standstill Period"), Holdings shall not, and shall cause all of its respective Subsidiaries and
Affiliates not to, directly or indirectly through another Person, unless expressly invited in a writing with the approval of the Board (provided, that
the Holding Board Members shall not participate in such decision).
-
(a)
-
acquire,
agree to acquire, propose, seek or offer to acquire or announce the intention to acquire, or knowingly facilitate the acquisition or ownership of (whether
publicly or otherwise and whether or not subject to conditions) any equity securities, loans, debt securities or assets of the Company or any of its Subsidiaries, or any warrant, option or other
direct or indirect right to acquire any such securities, loans or assets;
-
(b)
-
enter
into, agree to enter into, propose, or seek or offer to enter into or knowingly facilitate any merger, business combination, recapitalization, restructuring or
other extraordinary transaction (including a Change of Control) involving the Company or any of its Subsidiaries;
-
(c)
-
initiate,
knowingly encourage, make, or in any way participate or engage in, any "solicitation" of "proxies" as such terms are used in the proxy rules of the U.S.
Securities and Exchange Commission (the "SEC") to vote, or seek to advise or influence any person (other than any Permitted Transferees) with respect to
the voting of, any voting securities of the Company (including, for the avoidance of doubt, indirectly by means of communication with the press or media), in each case, other than in a manner in
accordance with the recommendation of the Board;
-
(d)
-
file
with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its shareholders that would be required
to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act;
-
(e)
-
nominate
or recommend for nomination a person for election at any shareholder meeting of the Company at which directors of the Board are to be elected, other than
pursuant to Section 2.02;
-
(f)
-
submit
any shareholder proposal for consideration at, or bring any other business before, any shareholder meeting of the Company;
-
(g)
-
initiate,
knowingly encourage, or actively participate or engage in, any "withhold" campaign with respect to any shareholder meeting of the Company;
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-
(h)
-
form,
join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the
Company, other than with the Permitted Transferees;
-
(i)
-
call,
request the calling of, or otherwise seek or assist in the calling of a special meeting of the Shareholders;
-
(j)
-
otherwise
act, alone or in concert with others, to seek to control the management of the Company;
-
(k)
-
disclose
any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; or
-
(l)
-
advise,
assist or knowingly encourage or enter into any negotiations, agreements or arrangements with any other persons (other than any Permitted Transferees) in
connection with the foregoing (provided, that this paragraph (l) shall not restrict a Shareholder's ability to Transfer its Common Stock in
accordance with Section 3.01);
provided that the foregoing limitations will (i) in no way limit the activities of any Person appointed to the Board
pursuant to the terms of the Merger Agreement or this Agreement taken in his or her capacity as a director of the Company, (ii) not preclude the exercise of any rights received as a dividend or
other distribution in a rights offering or other issuance in respect of any Common Stock beneficially owned by Holdings, (iii) not require Holdings or any of its Affiliates to vote its Common
Stock with respect to any matter in any given manner or at all and not restrict Holdings or any of its Affiliates from publicly stating how it intends to vote on any particular matter and
(iv) not limit Holdings or its Affiliates from participating in any auction process initiated by the Company or any of its Subsidiaries with respect to its assets in which the Company has
invited in writing Holdings or any of its Affiliates to participate. Holdings further agrees that during the Standstill Period it will not (and will ensure that its controlled Affiliates and any
person acting on behalf of or in concert with it or any of its controlled Affiliates will not), directly or indirectly (x) make any request directly or indirectly, to amend or waive any
provision of this Section 2.03 (including this sentence), or (y) take any action (except as expressly permitted herein) that would reasonably be expected to require the Company to make a
public announcement regarding the possibility of a business combination, merger or other extraordinary transaction described in this Section 2.03 with it or any of its controlled Affiliates.
Notwithstanding anything to the contrary contained in this Agreement, the provisions of Section 2.03 shall be inoperative and of no force or effect if (A) the Company enters into a
definitive agreement providing for a Change of Control (solely for the purposes of this sentence, whether or not such Change of Control is with a Third Party Purchaser) or (B) the Board fails
to publicly recommend against any tender or exchange offer for Common Stock commenced by another Person within ten business days of commencement thereof pursuant to Rule 14d-2 of the Exchange
Act.
ARTICLE III.
RESTRICTIONS ON TRANSFER
Section 3.01 General Restrictions on
Transfer.
-
(a)
-
Except
as permitted by Section 3.01(b), Holdings will not, and will cause each of its Permitted Transferees not to, from the date hereof until the six month
anniversary of the date hereof (the "Lock-up Period"), Transfer any of the Common Stock that it beneficially owns; provided that such restriction may be
waived or amended by (x) the Related Party Transactions Committee of the Board, or (y) if such
committee is no longer in existence, the Board. Following the expiration of the Lock-up Period, Holdings and each of its Permitted Transferees may Transfer any Common Stock held by Holdings; provided
that Holdings shall not, and shall cause each of its Permitted Transferees not to, Transfer (i) more than 50% of
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the
Common Stock held by Holdings as of the date of this Agreement during the one year period following the Lock-up Period, (ii) Common Stock to any "person" or "group" (in each case within the
meaning of Section 13(d) of the 1934 Act), in a single transaction or series of related transactions, if such "person" or "group" beneficially owns more than 5.0% of the then-outstanding shares
of Common Stock or would hold, as a result of such transfer, more than 5.0% of the then-outstanding shares of Common Stock or (iii) until such time that Holdings, together with its Permitted
Transferees, beneficially owns less than 5% of the then-outstanding shares of Common Stock, Common Stock constituting more than 2.5% of the then-outstanding Common Stock in any 90-day period in an
open market sale or block trade, unless through a marketed offering or a privately negotiated sale so long as any such privately negotiated sale is to the ultimate investor and not an intermediary; provided, further, that the foregoing requirements may be waived or amended by (x) the Related
Party Transactions Committee of the Board, or (y) if such committee is no longer in existence, the Board (provided, that the Holdings Board
Members shall not participate in such decision). Without limiting the foregoing, Holdings shall comply with the Securities Trading Policy of the Company with respect to each Transfer of Common Stock.
-
(b)
-
(a)
The provisions of Section 3.01(a) shall not apply to any Transfer by Holdings or its Permitted Transferees (i) of all (or a portion of) of its
Common Stock to a Permitted Transferee, (ii) pursuant to a merger, stock sale, consolidation or other business combination of the Company with a Person that is unaffiliated with the
Shareholders or (iii) solely in connection with the pledging of any Common Stock or any exercise of lender's rights or remedies, including without limitation any subsequent Transfer by such
lender, pursuant to any loan agreement with a bona fide financial institution. For the avoidance of doubt, any exercise of any lender's rights and/or
remedies under any such loan agreement and any transfer following any exercise of such remedies shall not be limited or restricted by any provision of this Agreement.
-
(c)
-
In
addition to any legends required by Applicable Law, each certificate (if any) representing the Common Stock of the Company held by the Shareholders shall bear a
legend substantially in the following form:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDERS AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH SHAREHOLDERS AGREEMENT."
-
(d)
-
Prior
notice shall be given to the Company by the transferor of any Transfer permitted by this Section 3.01 (whether or not to a Permitted Transferee) of any
Common Stock at least three Business Days prior to the date of any such Transfer. Prior to or concurrently with the consummation of any Transfer to a Permitted Transferee, Holdings shall cause the
transferee to execute and deliver to the Company a Joinder Agreement and agree to be bound by the terms and conditions of this Agreement. Upon any Transfer by Holdings of any of its Common Stock to a
Permitted Transferee, in accordance with the terms of this Agreement, the transferee thereof shall be substituted for, and shall assume all the rights and obligations under this Agreement of, the
transferor thereof.
-
(e)
-
Notwithstanding
any other provision of this Agreement, each Shareholder agrees that it will not, directly or indirectly, Transfer any of its Common Stock
(i) except as permitted under the Securities Act and other applicable federal or state securities laws, (ii) if it would cause the
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Company
or any of its Subsidiaries to be required to register as an investment company under the Investment Company Act of 1940, as amended, or (iii) if it would cause the assets of the Company
or any of its Subsidiaries to be deemed plan assets as defined under the Employee Retirement Income Security Act of 1974, as amended, or its accompanying regulations or result in any "prohibited
transaction" thereunder involving the Company.
-
(f)
-
Any
attempt to Transfer any Common Stock that is not in compliance with this Agreement shall be null and void, and the Company shall not, and shall cause any
transfer agent not to, give any effect in the Company's stock records to such attempted Transfer and the purported transferee in any such Transfer shall not be treated as the owner of such Common
Stock for any purposes of this Agreement.
ARTICLE IV.
OTHER AGREEMENTS
Section 4.01 Termination of Original
Agreement.
Pursuant
to Section 7.01 of the Original Shareholders Agreement, Holdings and the Company hereby agree to terminate the Original Shareholders Agreement in its entirety effective
as of the date hereof.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01 Shareholder Representations and
Warranties. Each Shareholder represents and warrants to the Company and each other Shareholder that:
-
(a)
-
Such
Shareholder is an entity duly organized and validly existing and in good standing (or the equivalent thereof) under the laws of the jurisdiction of organization
and has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
-
(b)
-
The
execution and delivery of this Agreement, the performance by such Shareholder of its obligations hereunder and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite corporate or other company action of such Shareholder. Such Shareholder has duly executed and delivered this Agreement.
-
(c)
-
This
Agreement constitutes the legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby,
require no action by or in respect of, or filing with, any Governmental Authority (other than the filing of any required reports with the SEC).
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(d)
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The
execution, delivery and performance by such Shareholder of this Agreement and the consummation of the transactions contemplated hereby do not (i) conflict
with or result in any violation or breach of any provision of any of the organizational documents of such Shareholder, (ii) conflict with or result in any violation or breach of any provision
of any Applicable Law or (iii) require any consent or other action by any Person under any provision of any material agreement or other instrument to which such Shareholder is a party.
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(e)
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Except
for this Agreement, the Amended and Restated Registration Rights Agreement, dated as of November 29, 2017, by and among the Company, Holdings and
certain other parties, and the Margin Loan Agreement, dated as of August 22, 2018, among Holdings, the lenders party thereto and Barclays Bank plc (as administrative agent and
calculation agent) and the accompanying Pledge and Security Agreement, to the extent applicable, such Shareholder is not bound by any other agreements or arrangements of any kind with any other party
with respect to the Common Stock, including agreements or arrangements with respect to the acquisition or disposition of the Common Stock or any interest therein or the voting of the Common Stock
(regardless of whether or not such agreements and arrangements are with the Company or any other Shareholder).
ARTICLE VI.
TERM AND TERMINATION
Section 6.01 Termination.
This
Agreement shall terminate upon the earliest of: (a) the date on which neither Holdings nor any of its Permitted Transferee(s) beneficially owns at least 5% of the then
outstanding Common Stock; provided that, Section 2.01 shall survive for the duration specified therein; (b) the dissolution, liquidation,
or winding up of the Company; or (c) upon the written agreement of the Company and Holdings.
Section 6.02 Effect of
Termination.
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(a)
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The
termination of this Agreement shall terminate all further rights and obligations of the Shareholders under this Agreement except that such termination shall not
effect: (i) the existence of the Company; (ii) the obligation of any party to pay any amounts arising on or prior to the date of termination, or as a result of or in connection with such
termination; (iii) the rights which any Shareholder may have by operation of law as a Shareholder; or (iv) the rights contained herein which are intended to survive termination of this
Agreement.
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(b)
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The
following provisions shall survive the termination of this Agreement: this Section 6.02 and Section 7.02, Section 7.09, Section 7.10
and Section 7.12.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Expenses.
Except
as otherwise expressly provided herein, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
Section 7.02 Notices.
All
notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand
(with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by facsimile or
email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such
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communications
must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this
Section 7.02):
if
to Holdings, Parent or Manager:
Sapphire
Holding S.à.r.l.
20, rue Eugene Ruppert
Luxembourg, L-2453 Luxembourg
Attention: Directors
Email: tdrlux@tdrcapital.com
notifications@tdrcapital.com
with
a copy to (which shall not constitute notice):
Kirkland &
Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: David M. Klein, P.C., Eric Schiele, P.C.
E-mail: dklein@kirkland.com, eric.schiele@kirkland.com
if
to the Company to:
[Combined
Corporation]
901 S. Bond Street, #600
Baltimore, MD 21231
Attention: Tim Lopez
E-mail: hezron.lopez@willscot.com
with
a copy to (which shall not constitute notice):
Allen &
Overy LLP
1221 Avenue of the Americas
New York, NY 10020
Attention: William Schwitter
Facsimile: (212) 610-6399
E-mail: william.schwitter@allenovery.com
Section 7.03 Interpretation.
For
purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is
not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. The
definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. Unless the context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean the Articles and Sections of, and
Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to
time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations
promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
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Section 7.04 Severability.
If
any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent possible.
Section 7.05 Entire
Agreement.
This
Agreement and the Organizational Documents constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersede all
prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Section 7.06 Amendment and Modification;
Waiver.
This
Agreement may only be amended, modified or supplemented by an agreement in writing signed by the Company and Holdings. No waiver by any party of any of the provisions hereof shall
be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall
operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring
before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 7.07 Successors and
Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, to the extent permitted under Article III
hereof.
Section 7.08 No Third-Party
Beneficiaries.
This
Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or
entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.09 Governing Law;
Jurisdiction.
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(a)
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This
Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of
law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
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(b)
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Each
of the parties agrees that it shall bring any action or proceeding in respect of any claim arising under or relating to this Agreement or the transactions
contemplated by this Agreement exclusively in the Court of Chancery of the State of Delaware (or if such court declines to accept jurisdiction over a particular matter, any state or Federal court
located within the State of Delaware) (the "Chosen Courts") and, solely in connection with such claims, (a) irrevocably submits to the exclusive
jurisdiction of the Chosen Courts, (b) waives any objection to the laying of venue in any such action or proceeding in the Chosen Courts, (c) waives any objection that the Chosen Courts
are an inconvenient forum or do not have jurisdiction over any party and (d) agrees that mailing of process or other papers in
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connection
with any such action or proceeding in the manner provided in Section 7.02 or in such other manner as may be permitted by Law shall be valid and sufficient service thereof. The
consent to jurisdiction set forth in this Section 7.09 shall not constitute a general consent to service of process in the State of Delaware and shall have no effect for any purpose except as
provided in this Section 7.09. The parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law.
Section 7.10 Equitable
Remedies.
Each
party hereto acknowledges that the other parties hereto would be irreparably damaged in the event of a breach or threatened breach by such party of any of its obligations under this
Agreement and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, each of the other parties hereto shall, in addition to any and all other rights
and remedies that may be available to them in respect of such breach, be entitled to an injunction from a court of competent jurisdiction (without any requirement to post bond) granting such parties
specific performance by such party of its obligations under this Agreement. In the event that any party files a suit to enforce the covenants contained in this Agreement (or obtain any other
remedy in respect of any breach thereof), the prevailing party in the suit shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party
in conduction the suit, including reasonable attorney's fees and expenses.
Section 7.11 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of
this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 7.12 Waiver of Jury
Trial.
EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 7.13 Actions by the
Company.
Any
actions, including without limitation any decisions, waivers, requests or consents, to be taken or made by the Company under this Agreement shall only be made with (i) prior
approval of the Related Party Transactions Committee of the Board, or (ii) if such committee is no longer in existence, prior approval of the Board
(provided, that the Holdings Board Members shall not participate in such decision).
Section 7.14 Section 16
Matters.
So
long as the Shareholders have the right to designate a Holdings Board Member, the Board shall take such action as is reasonably necessary to cause the exemption of any acquisition or
disposition of Common Stock or other equity securities by the Shareholders in connection with a sale of the Company from the liability provisions of Section 16(b) of the Exchange Act pursuant
to Rule 16b-3, including by passing one or more exemptive resolutions in connection with each purported acquisition or disposition of Common Stock or other equity securities by the Shareholders
in connection with a sale of the Company.
Section 7.15 Trading Restriction
Periods.
For
so long as Holdings is entitled to designate a Holdings Board Member, Holdings shall, and shall cause each of its controlled Affiliates to, abide by the provisions of the Securities
Trading Policy
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of
the Company in the form attached hereto in Exhibit B that are generally applicable to any Covered Person under the headings (i) "Quarterly Trading Restrictions" and
(ii) "Event-Specific Trading Restriction Periods" (and, for purposes of this clause (ii), solely with respect to restrictions that are communicated reasonably in advance in writing to
Holdings by the Company), but subject to the permitted exceptions therein.
[Signature
Page Immediately Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
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Company:
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[COMBINED CORPORATION]
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By:
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Name:
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Title:
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Shareholders:
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SAPPHIRE HOLDING S.À.R.L.
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TDR CAPITAL II HOLDINGS L.P.
acting by its manager TDR CAPITAL LLP
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Name:
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[Signature Page to Shareholders Agreement]
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TDR CAPITAL LLP
In its capacity as manager to TDR Capital II Holdings L.P.
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Exhibit A
EXHIBIT A JOINDER AGREEMENT
This Joinder Agreement (this "Joinder Agreement") is made as of the date written below by the
undersigned (the "Joining Party") in accordance with the Shareholders Agreement dated as of
[ · ] (as the same may be amended from time to time, the
"Shareholders Agreement") among [Combined Corporation], a Delaware corporation (the
"Company"), Sapphire Holding S.à.r.l. ("Holdings"), TDR Capital II Holdings L.P.
("Parent") and TDR Capital LLP ("Manager", together with Holdings, Parent and each Person that
has executed and delivered to the Company a joinder to this Agreement in accordance with Section 3.01(d), the "Shareholders").
Capitalized
terms used, but not defined, herein shall have the meaning ascribed to such terms in the Shareholders Agreement.
The
Joining Party hereby acknowledges and agrees that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party under the Shareholders Agreement as of
the date hereof and shall have all of the rights and obligations of the Shareholder from whom it has acquired the Common Stock (to the extent permitted by the Shareholders Agreement) as if it had
executed the Shareholders Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Shareholders
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below. Date: [ ],
20[ ]
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Address for Notices:
AGREED ON THIS [ ], 20[ ]:
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A-1
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Exhibit B
SECURITIES TRADING POLICY
Table of Contents
EXHIBIT G-1
[Combined Corporation]
AUDIT COMMITTEE CHARTER
PURPOSE
The purpose of the Audit Committee (the "Committee") of the Board of Directors (the
"Board") of [Combined Corporation] (the "Company") is to oversee the Company's
accounting and financial reporting processes and the audits of the Company's financial statements and internal control over financial reporting. In that regard, the Committee assists the Board in
monitoring: (i) the integrity of the Company's financial statements and accounting and financial reporting processes; (ii) the Company's compliance with legal and regulatory
requirements; (iii) the independent auditor's qualifications, performance, and independence; (iv) the performance of the Company's internal audit and disclosure controls functions; and
(v) the Company's risk management
framework. As used herein, the term "independent auditor" includes any registered public accounting firm engaged by the Company for the purpose of preparing an audit report or performing audit, review
or attest services.
The
Committee shall also prepare the report required by the rules of the Securities and Exchange Commission (the "SEC") to be included in
the Company's annual proxy statement.
COMPOSITION
The Committee shall be comprised of four directors, two of which shall be WillScot Continuing Directors (as defined in the Bylaws of the
Company) and two of which shall be Mobile Mini Continuing Directors (as defined in the Bylaws of the Company). Each such director shall be determined by the Board to be "independent" as required by
Rule 10A-3 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations of the Nasdaq Stock Market
("Nasdaq"). Each member of the Committee must be able to read and understand fundamental financial statements, including the Company's balance sheet,
income statement, and cash flow statement.
At
least one member of the Committee must have past employment experience in finance or accounting, requisite professional certification in accounting or other comparable experience or
background that leads to financial sophistication. At least one member of the Committee must be an "audit committee financial expert" as defined in Item 407(d)(5)(ii) of Regulation S-K,
as determined by the Board. A person who satisfies this definition of audit committee financial expert will also be presumed to have financial sophistication.
Appointments
to the Committee (including determination that appointees are financially literate, designation of the Chair of the Committee, and identification of at least one Committee
member as an "audit committee financial expert") shall be made by the Board on an annual basis upon recommendation of the Nominating and Corporate Governance Committee of the Board. Each member shall
be subject to annual reconfirmation and may be removed by the Board at any time, with or without cause.
The
Committee shall not include any member who: (i) participated in the preparation of the Company's or any of its subsidiaries' financial statements at any time during the past
three years; (ii) accepted any consulting, advisory, or other compensatory fee (directly or indirectly) from the Company, other than in his or her capacity as a member of the Committee, the
Board, or another committee of the Board; or (iii) is an affiliate of the Company as defined by the SEC's rules, other than a director who meets Nasdaq's independence requirements.
No
member of the Committee may serve simultaneously on the audit committee of more than three other public companies.
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POWER & AUTHORITY
The Committee shall have the sole authority to appoint, determine funding for, and oversee the outside auditors (subject, if applicable, to
stockholder ratification). The Committee shall be directly responsible for the appointment, compensation, retention, termination, and oversight of the work of the independent auditor (including
resolution of any disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or performing other audit, review
or attest services for the Company (subject, if applicable, to stockholder ratification). The independent auditor shall report directly to the Committee. Similarly, the Committee shall oversee aspects
of the internal audit function, as set forth in this Charter (the "Charter").
The
Committee shall approve all auditing services, internal control-related services and permitted non-audit services (including the range of fees and terms thereof) to be performed for
the Company by the independent auditor before the auditor is engaged to render such services, subject to the de minimis exception for non-audit services described in Section 10A(i)(1)(B) of the
Exchange Act that are approved by the Committee prior to the completion of the audit. The Committee shall review and discuss with the independent auditor any documentation supplied by the independent
auditor as to the nature and scope of any tax or non-audit services to be approved, as well as the potential effects of the provision of such services on the auditor's independence.
The
Committee may form and delegate authority to subcommittees consisting of one or more members when appropriate, including the authority to grant pre-approvals of audit and permitted
non-audit services pursuant to pre-approval policies and procedures established by the Committee, provided that decisions of such subcommittee to grant preapprovals shall be presented to the full
Committee at its next scheduled meeting.
The
Committee shall have the authority, to the extent it deems necessary or appropriate, to engage and determine funding for independent legal, accounting or other advisors. The Company
shall provide appropriate funding, as determined by the Committee, for payment of compensation to the independent auditor for the purpose of rendering or issuing an audit report or performing other
audit, review or attest services for the Company and to any advisors employed by the Committee, as well as funding for the payment of ordinary administrative expenses of the Committee that are
necessary or appropriate in carrying out its duties.
The
Committee shall make regular reports to the Board. These reports shall include a review of any issues that arise with respect to the quality or integrity of the Company's financial
statements, the Company's compliance with legal or regulatory requirements, the independence and performance of the Company's independent auditor, the performance of the internal audit function, and
any other matters that the Committee deems appropriate or is requested to include by the Board.
The
Committee shall review and reassess the adequacy of this Charter annually and recommend any proposed changes to the Nominating and Corporate Governance Committee for its review.
The
Committee shall be given full access to the employees of the Company's internal audit function, corporate officers, employees, and independent auditors, as necessary, to carry out
these responsibilities.
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RESPONSIBILITIES
The Committee shall:
Financial Statement & Disclosure Matters
1. Review
and discuss with management and the independent auditor the annual audited financial statements, including disclosures made in management's discussion and
analysis, and recommend to the Board whether the audited financial statements should be included in the Company's Form 10-K.
2. Review
and discuss with management and the independent auditor the Company's quarterly financial statements prior to the filing of its Form 10-Q, including
disclosures made in management's discussion and analysis and the results of the independent auditor's review of the quarterly financial statements.
3. Discuss
with management and the independent auditor significant financial reporting issues and judgments made in connection with the preparation of the Company's
financial statements, including any significant changes in the Company's selection or application of accounting principles; the clarity of the financial disclosures made by the Company; and
information regarding any "second" opinions sought by management from an independent auditor with respect to the accounting treatment of a particular event or transaction.
4. Review
and discuss with management (including one or more senior internal audit executives) and the independent auditor the Company's internal controls report and, if
applicable, the independent auditor's attestation report prior to the filing of the Company's Form 10-K.
5. Review
and discuss quarterly reports from the independent auditors on: (a) all critical accounting policies and practices to be used; (b) all alternative
treatments of financial information within U.S. generally accepted accounting principles ("GAAP") that have been discussed with management,
ramifications of the use of such alternative disclosures and treatments, and the treatment preferred by the independent auditor; and (c) other material written communications between the
independent auditor and management, such as any management letter or schedule of unadjusted differences.
6. Obtain,
review, and approve, if applicable, a timely analysis from management relating to any significant proposed or contemplated changes to the Company's accounting
principles, policies, estimates, internal controls, disclosure controls, procedures, practices, and auditing plans (including those policies for which management is required to exercise discretion or
judgments regarding the implementation thereof).
7. Discuss
with management in advance the Company's earnings press releases, including the use of "pro forma" or "adjusted" non-GAAP information, as well as financial
information and earnings guidance provided to analysts and rating agencies. Such discussion may be general, consisting of discussing the types of information to be disclosed and the types of
presentations to be made.
8. Discuss
with management and the independent auditor the effect of regulatory and accounting initiatives as well as off-balance sheet structures on the Company's financial
statements.
9. Review
with management, the head of internal audit, and/or the independent auditor the Company's policies (including, without limitation, the Company's risk assessment
and enterprise risk management policies) with respect to significant risks and exposures, including risks affecting the Company financially, operationally, and virtually (e.g., cyber-security
and data-protection risks), and the steps taken to assess, monitor and manage such risks.
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10. Review
and approve the Company's policies and processes governing the use of derivative transactions and hedging strategy, and approve the Company's decisions to enter
into swaps and other derivative transactions.
11. Discuss
with the independent auditor the matters required to be discussed by Statement on Auditing Standards No. 114 relating to the conduct of the audit,
including any difficulties encountered in the course of the audit work and management's response thereto, any restrictions on the scope of activities or access to requested information, any accounting
adjustments that were noted or proposed by the auditor but were not adopted or reflected, any communications between the audit team and the audit firm's national office regarding auditing or
accounting issues presented by the engagement, any management or internal control letter issued, or proposed to be issued, by the auditor, and any significant disagreements with management. In
connection with its oversight responsibilities, the Committee shall be directly responsible for the resolution of any disagreements between management and the auditor regarding the Company's financial
reporting.
12. Periodically
discuss with the independent auditor and employees of the internal audit function, without management being present: (a) their judgments about the
quality, appropriateness, and acceptability of the Company's accounting principles and financial disclosure practices, as applied in its financial reporting; and (b) the completeness and
accuracy of the Company's financial statements.
13. Review
disclosures made to the Committee by the Company's Chief Executive Officer and Chief Financial Officer during their certification process for the Form 10-K
and Form 10-Q about any significant deficiencies in the design or operation of internal controls or material weaknesses therein which are reasonably likely to affect the Company's ability to
record, process, summarize and report financial information and any fraud involving management or other employees who have a significant role in the Company's internal controls.
14. Ensure
that a public announcement of the Company's receipt of an audit opinion that contains a going concern qualification is made promptly.
Oversight of the Committee's Relationship with Independent Auditors
15. In
connection with the Committee's sole authority to appoint the independent auditor, before the engagement of the independent auditor by the Committee and at least
annually thereafter, review and discuss with the independent auditor the independent auditor's written communications to the Committee regarding the relationships between the auditor and the Company
that, in the auditor's professional judgment, may reasonably be thought to bear on its independence and affirming in writing to the Committee that the auditor is independent.
16. Obtain
and review, at least annually, all material written communications between the independent auditor and management, including, but not limited to:
(a) engagement agreement(s); (b) management representation letters; and (c) internal counsel representation letters.
17. Review
and evaluate the lead partner of the independent auditor team.
18. Obtain
and review a report from the independent auditor at least annually regarding: (a) the independent auditor's internal quality control procedures;
(b) any material issues raised by the most recent internal quality-control review, peer review, or Public Company Accounting Oversight Board ("PCAOB") review of the independent auditor, or by
any inquiry or investigation by governmental or professional authorities within the preceding five years respecting one or more independent audits carried out by the independent auditor; and
(c) any steps taken to deal with any such issues. Also evaluate the qualifications, performance, and independence of the independent auditor, including considering whether the independent
auditor's quality controls are adequate and the provision of permitted non-audit services is compatible with maintaining the auditor's independence and taking into
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account
the opinions of management and internal auditors. The Committee shall present its conclusions with respect to the independent auditor to the Board.
19. Obtain
from the independent auditor a formal written statement delineating all relationships between the independent auditor and the Company, consistent with applicable
requirements of the PCAOB. It is the responsibility of the Committee to engage actively in a dialogue with the independent auditor with respect to any disclosed relationships or services that may
impact the objectivity and independence of the independent auditor and for purposes of taking, or recommending that the full Board take, appropriate action to oversee the independence of the outside
auditor.
20. Ensure
the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as
required by law. Consider whether, in order to assure continuing auditor independence, it is appropriate to adopt a policy of rotating the independent auditor on a regular basis.
21. Recommend
to the Board policies for the Company's hiring of employees or former employees of the independent auditor.
22. Meet
with the independent auditor prior to the audit to discuss the planning and staffing of the audit, including with respect to the overall audit strategy, the scope
and timing of the annual audit, and other related matters.
23. Review
and discuss with the Company's independent auditors: (1) the auditors' responsibilities under generally accepted auditing standards and the
responsibilities of management in the audit process; (2) any significant risks identified during the auditors' risk assessment procedures; and (3) when completed, the results, including
significant findings, of the annual audit.
24. Keep
the Company's independent auditors informed of the Committee's understanding of the Company's relationships and transactions with related parties that are
significant to the Company; additionally, review and discuss with the Company's independent auditors the auditors' evaluation of the Company's identification of, accounting for, and disclosure of its
relationships and transactions with related parties, including any significant matters arising from the audit regarding the Company's relationships and transactions with related parties.
25. Determine
whether to seek stockholder ratification of the selection of the independent auditor and, if such ratification is sought and not received, determine how to
proceed.
Oversight of the Company's Internal Audit Function
26. Review
the significant reports to management prepared by the internal audit function (e.g., the internal audit function's annual report) and management's
responses.
27. Discuss
with the independent auditor and management the responsibilities, budget, and staffing of the internal audit function, and any recommended changes in the planned
internal audit activities.
28. Review
and evaluate the internal audit function, the annual audit plan and changes to the audit plan.
29. Review
the appointment and replacement of the senior internal audit executive(s).
30. Interface
with the internal audit department as necessary, with the internal audit department reporting directly to the Committee and with the internal audit department
maintaining dotted-line reporting to the Company's Chief Financial Officer for operational matters, as set forth in greater detail in the charter of the internal audit department.
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Compliance Oversight Responsibilities
31. Obtain
from the independent auditor assurance that Section 10A(b) of the Exchange Act, regarding any illegal acts that may be discovered or come to the attention
of the independent auditor during the course of its audit, has not been implicated.
32. Obtain
reports from management, the Company's senior internal audit executive(s) and the independent auditor that the Company and its subsidiaries are in conformity with
applicable legal requirements and the Company's Code of Business Conduct and Ethics. Advise the Board with respect to the Company's policies and procedures regarding compliance with applicable laws
and regulations, and with the Company's Code of Business Conduct and Ethics. Review and consider any requests for waivers under the Code of Business Conduct and Ethics for directors, executive
officers or other senior financial officers of the Company, and make a recommendation to the Board in respect of such request.
33. Except
as otherwise approved by the Board, review and oversee all related-party transactions in accordance with the Company's Policy on Related Person Transactions
(including, for the avoidance of doubt, arrangements required to be disclosed pursuant to Item 404 of Regulation S-K).
34. Establish,
oversee, and periodically review and edit, with the assistance of the General Counsel, if applicable, the Company's Whistleblower Policy, with regard to
procedures for the receipt, retention, and treatment of complaints received by the Company through authorized whistleblower channels regarding accounting, internal accounting controls, or auditing
matters, and the confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters. Adopt, as necessary, appropriate remedial measures or actions with
respect to such complaints or concerns.
35. Discuss
with management and the independent auditor any correspondence with regulators or governmental agencies and any published reports that raise material issues
regarding the Company's financial statements or accounting policies.
36. Discuss
with the Company's General Counsel legal matters, including any major litigation or investigations against the Company, that may have a material impact on the
financial statements or the Company's compliance policies.
37. Under
the oversight of the Nominating and Corporate Governance Committee, evaluate, at least annually, the effectiveness of the Committee and its members, including an
evaluation of the Committee's compliance with this Charter, and present the results to the Board.
38. Perform
such other functions as assigned by law, the Company's charter or bylaws, or the Board.
MEETINGS
The Committee shall meet as often as it determines necessary, but not less frequently than quarterly. The Chair of the Committee shall preside
at each meeting and, in the absence of the Chair, one of the other members of the Committee shall be designated as the acting chair of the meeting. The Chair of the Committee, in consultation with the
other committee members, shall determine the frequency and length of the committee meetings and shall set meeting agendas consistent with this charter. Written minutes of Committee meetings shall be
maintained.
The
Committee shall meet periodically in separate executive sessions with management, members of the internal audit department, and the independent auditor and have such other direct and
independent interaction with such persons from time to time as the members of the Committee deem appropriate. The Committee may request any officer or employee of the Company or the Company's
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outside
counsel or independent auditor to attend a meeting of the Committee or to meet with any members of, or consultants to, the Committee.
LIMITATION OF AUDIT COMMITTEE'S ROLE
While the Committee has the responsibilities and powers set forth in this Charter, it is not the duty of the Committee to plan or conduct audits
or to determine that the Company's financial statements and disclosures are complete and accurate and are in accordance with GAAP and
applicable rules and regulations. These are the responsibilities of management and the independent auditor.
This
Charter was adopted by the Board on [ · ](1).
-
(1)
-
Note to Draft: To be the closing date of the proposed transaction.
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EXHIBIT G-2
[Combined Corporation]
COMPENSATION COMMITTEE CHARTER
PURPOSE
The purpose of the Compensation Committee (the "Committee") of the Board of Directors (the
"Board") of [Combined Corporation] (the "Company") is to discharge the Board's
responsibilities relating to the compensation and benefits of the Company's Chief Executive Officer ("CEO") and other officers who are "executive
officers" for purposes of
Item 401(b) of Regulation S-K (collectively, the "Executive Officers"). In this role, the Committee has overall responsibility for
approving and evaluating all compensation plans, policies and programs of the Company as they affect the Executive Officers.
The
Board has adopted this charter to establish the governing principles of the Committee (the "Charter").
COMPOSITION
The Committee shall be comprised of four directors, two of which shall be WillScot Continuing Directors (as defined in the Bylaws of the
Company) and two of which shall be Mobile Mini Continuing Directors (as defined in the Bylaws of the Company). Each such director shall: (i) be determined by the Board to be "independent" in
accordance with Section 10C-1 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules and regulations promulgated
thereunder by the SEC; (ii) be determined by the Board to meet the independence requirements of the Nasdaq Stock Market ("NASDAQ"), including
pursuant to NASDAQ Rule 5605(a)(2); and (iii) satisfy the additional composition requirements of NASDAQ Rule 5605(d)(2); provided, however,
that pursuant to NASDAQ Rule 5605(d)(2)(B), one director, who does not meet the requirements of paragraph 5605(d)(2)(A) and is
not currently an Executive Officer or employee or a family member of an Executive Officer, may be appointed to the Committee if the board, under exceptional and limited circumstances, determines that
such individual's membership on the committee is required by the best interests of the Company and its stockholders; and provided, further, that at all
times the Committee shall maintain compliance with the applicable NASDAQ rules.
All
members of the Committee also shall qualify as "non-employee" directors within the meaning of Rule 16b-3 promulgated under the Exchange Act.
In
considering whether a member of the Board is qualified to serve on the Committee, the Board shall consider all factors specifically relevant to determining whether a director has a
relationship to the Company which is material to that director's ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited
to: (i) the source of compensation of such director, including any consulting, advisory, or other compensatory fee paid by the Company to such director; and (ii) whether such director is
affiliated with the Company, a subsidiary of the Company, or an affiliate of a subsidiary of the Company (affiliate as defined within the meaning of Rule 405 promulgated under the Securities
Exchange Act of 1934).
Appointments
to the Committee (including the aforementioned Board determinations and designation of the Chair of the Committee) shall be made by the Board on an annual basis taking into
consideration the recommendations of the Nominating and Corporate Governance Committee of the
Board. Each member shall be subject to annual reconfirmation and may be removed by the Board at any time, with or without cause.
A
member of the Board shall not serve on the Committee if any Executive Officer serves on the board of directors of an entity that employs such Board member as an executive officer. No
Committee member shall accept, directly or indirectly, any consulting, advisory or other compensatory fee from the
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Company
or any subsidiary; provided that such compensatory fees shall not include: (i) fees received as a member of the Committee, the Board, or
any other committee of the Board; or (ii) the receipt of fixed amounts of compensation under a retirement plan, including deferred compensation, for prior service with the Company; provided that
such compensation is not contingent in any way on continued service.
OUTSIDE ADVISORS
The Committee shall have the authority, in its sole discretion, to engage or obtain advice or assistance from compensation consultants or legal,
accounting or other professional advisors as the Committee considers necessary or appropriate to perform its duties hereunder. The Committee shall be responsible for the appointment, compensation, and
oversight of any consultants or professional advisors retained by the Committee. The Company shall provide appropriate funding, as determined by the Committee, for payment of compensation to the
consultants and advisors engaged by the Committee, as well as funding for the payment of ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its
responsibilities.
In
retaining or seeking advice from compensation consultants and other advisors (other than the Company's in-house counsel), the Committee must take into consideration the factors
specified in NASDAQ Rule 5605(d)(3)(D). The Committee may retain, or receive advice from, any such consultants or advisors, including ones that are not considered to be independent, after
considering the specified factors. The Committee is not required to assess the independence of any compensation consultant or other advisor that acts in a role limited to: (i) consulting on any
broad-based plan that does not discriminate in scope, terms or operation in favor of Executive Officers or directors and that is generally available to all salaried employees; or (ii) providing
information that is not customized for a particular company or that is customized based on parameters that are not developed by the consultant or advisor, and about which the consultant or advisor
does not provide advice.
The
Committee shall not be required to implement or act consistently with the advice or recommendations of any compensation consultant or other advisor retained by the Committee, and the
authority granted to the Committee herein shall not affect the ability or obligation of the Committee to exercise its own judgment in the fulfillment of its duties.
RESPONSIBILITIES
The Committee shall:
-
1.
-
Review
management proposals regarding compensation philosophy and compensation plans and guidelines for the members of the Board and Executive Officers and report
conclusions to the Board. Such review includes plans and administration of plans related to base salary, short-term incentives, and long-term incentives.
-
2.
-
At
least annually, review and approve the annual base salaries and annual incentive opportunities of the CEO and, with the CEO's assistance, the other Executive
Officers. The CEO shall not be present during any Committee deliberations or voting with respect to his or her compensation. When a stockholder advisory vote on executive compensation
("Say on Pay Vote") is required for the Company under the SEC's rules and regulations, including Section 14A of the Exchange Act, the Committee,
in evaluating and determining compensation for the Executive Officers, shall consider the results of the most recent Say on Pay Vote.
-
3.
-
Periodically,
and as and when appropriate, review and approve the following as they affect the Executive Officers: (a) all other incentive awards and
opportunities, including both cash-based and equity-based awards and opportunities; (b) any employment agreements and severance
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arrangements;
(c) any change in control agreements and severance protection plans and change in control provisions affecting any elements of compensation and benefits, including equity-based
awards; and (d) any special or supplemental compensation and benefits for the Executive Officers and individuals who formerly served as Executive Officers. In doing so, the Committee shall
consider the results of the most recent Say on Pay Vote.
-
4.
-
Review
and make recommendations to the Board with respect to the adoption, amendment, or termination of the Company's compensation plans, as well as any equity
compensation plans or other compensation arrangements, to the extent that such plans and arrangements affect the Executive Officers. In doing so, the Committee shall consider the results of the most
recent Say on Pay Vote.
-
5.
-
Establish
and administer annual and long-term incentive compensation for the CEO and, with the CEO's assistance, the other Executive Officers, including:
(a) establishing performance objectives and certifying or otherwise determining performance achievement; and (b) reviewing and approving all equity-based compensation plans of the
Company and making all grants of equity-based awards thereunder.
-
6.
-
Oversee
the Company's regulatory compliance with respect to compensation matters (including, without limitation, compliance with the requirements of the
Sarbanes-Oxley Act of 2002 relating to loans to directors and officers) and, as and when required, establishing performance goals and certifying that performance goals have been obtained.
-
7.
-
Evaluate
whether any compensation consultant retained or to be retained by the Committee has any conflict of interest in accordance with Item 407(e)(3) of
Regulation S-K and, if applicable, consider how to address the conflict and make necessary disclosures in the Company's proxy statement.
-
8.
-
When
required for the Company under the SEC's rules and regulations, review and discuss with management the Compensation Discussion and Analysis
("CD&A") and other executive compensation information required to be included the Company's annual proxy statement or annual report on Form 10-K,
as applicable, and, based on that review and discussion, determine whether or not to recommend to the Board that the CD&A and other executive compensation information be so included.
-
9.
-
Produce
the compensation committee report required for inclusion in the Company's annual proxy statement in compliance with the SEC's rules and regulations.
-
10.
-
When
required for the Company under the SEC's rules and regulations, review and recommend to the Board for approval the frequency with which the Company will conduct
Say on Pay Votes, taking into account the results of the most recent stockholder advisory vote on frequency of Say on Pay Votes required by Section 14A of the Exchange Act, and review and
approve the proposals regarding the Say on Pay Vote and the frequency of the Say on Pay Vote to be included in the Company's proxy statement.
-
11.
-
Oversee
engagement with stockholders and proxy advisory firms with respect to executive compensation matters and consider feedback on an on-going basis from
stockholders and other sources regarding such matters.
-
12.
-
Review
periodically compensation programs and total compensation levels for Executive Officers, including: (a) reviewing whether compensation program elements
are properly coordinated and are appropriate to achieve intended objectives; (b) reviewing comparative analyses of total compensation paid or payable to Company executives and that is paid or
payable to executives at comparable companies; (c) quantifying maximum payouts to Company executives under performance-based incentive plans and total payments under various
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MEETINGS
The Committee shall meet as often as it determines necessary or appropriate to carry out its responsibilities under this Charter, but it is
expected that the Committee will meet at least three times each year. The Committee shall meet periodically in separate executive sessions with management and have such other direct and independent
interaction with management or other persons from time to time as the members of the Committee deem appropriate. The Committee may request any director, officer or employee of the Company or the
Company's outside counsel or independent auditor to attend a meeting of the Committee or to meet with any members of, or consultants to, the Committee. Written minutes of Committee meetings shall be
maintained.
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Meetings
of the Committee may be called by any member of the Committee. The Chairman of the Committee, in consultation with the other Committee members, shall determine the frequency and
length of the Committee meetings and shall set meeting agendas consistent with this Charter. Committee members shall be given notice of a meeting at least 24 hours in advance by telephone,
facsimile or electronic transmission. Any such notice need not be given to any Committee member who attends such meeting without protesting the lack of notice to him or her prior to or at the
commencement of such meeting, or to any member who submits a signed waiver of notice, whether before or after such meeting.
DELEGATION OF AUTHORITY
The Committee may form subcommittees composed of one or more of its independent members for any purpose that the Committee deems appropriate and
may delegate to such subcommittees such power and authority as the Committee deems appropriate. The Committee may also delegate to one or more officers of the Company the authority to make grants and
awards of cash or options or other equity securities to any non-Section 16 officers of the Company under the Company's incentive-compensation or other equity-based plans as the Committee deems
appropriate and in accordance with the terms of such plan; provided, that such delegation is in compliance with the plans and applicable law.
Effective
date: [ · ], 2020(1)
-
(1)
-
Note to Draft: To be the closing date of the proposed transaction.
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EXHIBIT G-3
[Combined Corporation]
NOMINATING AND CORPORATE GOVERNANCE COMMITTEE CHARTER
PURPOSE
The purpose of the Nominating and Corporate Governance Committee (the "Committee") of the Board
of Directors (the "Board") of [Combined Corporation] (the "Company") is to help
ensure that the Company's system of corporate governance performs well. In this regard, the Committee will consider and report periodically to the Board on matters relating to the identification,
selection, and qualification of Board members and candidates nominated to the Board; advise and make recommendations to the Board on corporate governance matters; and provide leadership to the Company
on matters relating to corporate governance.
The
Board has adopted this charter to establish the governing principles of the Committee (the "Charter").
COMPOSITION
The Committee shall be comprised of four directors, two of which shall be WillScot Continuing Directors (as defined in the Bylaws of the
Company) and two of which shall be Mobile Mini Continuing Directors (as defined in the Bylaws of the Company). Each such director shall be determined by the Board to be "independent" in accordance
with applicable rules and regulations of the Securities and Exchange Commission ("SEC") and the rules of the Nasdaq Stock Market
("NASDAQ"). Appointments to the Committee, including determination of independence and designation of the Chair of the Committee, shall be made by the
Board on an annual basis. Each member shall be subject to annual reconfirmation and may be removed by the Board at any time, with or without cause.
OUTSIDE ADVISORS
The Committee has the right at any time to obtain advice, reports, or opinions from internal and external counsel and expert advisors and has
the authority to hire and terminate independent legal, financial, and other advisors as it may deem necessary, at the Company's expense, without consulting with, or obtaining approval from, any
officer of the Company in advance. The Committee may request any director, officer or employee of the Company or the Company's outside counsel or independent auditor to attend a meeting of the
Committee, meet with any members of, or consultants to, the Committee and provide such pertinent information as the Committee may request.
RESPONSIBILITIES
The Committee shall:
-
1.
-
Identify
and screen individuals qualified to become members of the Board, develop a slate of nominees annually for consideration by the Board, and select and approve
or recommend the selection and approval by the Board of Directors nominees to fill vacancies and newly created directorships based on, among other things, their independence, character, ability to
exercise sound judgment, diversity, age, demonstrated leadership, qualifications, skills, including financial literacy, and experience in the context of the needs of the Board, taking into account, as
applicable, any contractual arrangements entered into by the Company or to which the Company is otherwise subject, with the approval of the Board, relating to or granting director nomination or
designation rights to any third party. For the avoidance of doubt, the Committee shall nominate or appoint successors to the Mobile Mini Continuing Directors and the WillScot Continuing Directors or
any director replacing a TDR Continuing Director (as defined in the Bylaws of the Company) if TDR Capital LLP loses its right to designate a director to the Board. The Committee shall also
consider unsolicited inquiries and director
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business
ethics and conduct, and review and consider any requests for waivers of the Company's corporate governance guidelines or code(s) of business ethics and conduct for Company directors,
executive officers and other senior financial officers, and make a recommendation to the Board with respect to such request for a waiver.
-
12.
-
Report
regularly to the Board concerning the Committee's activities, as appropriate.
-
13.
-
Periodically
review information or data concerning governance developments or trends, as appropriate.
-
14.
-
From
time to time as the Committee determines it to be necessary or appropriate, and at least on an annual basis, review the goals and objectives of the Company
relating to sustainability and corporate social responsibility and recommend to the Board or management, as appropriate, such measures and actions that the Committee believes may be appropriate
related to these matters.
-
15.
-
Develop
and oversee a Company orientation program for new directors, as appropriate, and make directors aware of continuing education programs; and periodically to
review these programs and update them as necessary.
-
16.
-
Conduct
an annual evaluation of the performance of its duties under this Charter and present the results of the evaluation to the Board. The Committee shall conduct
this evaluation in such manner as it deems appropriate.
-
17.
-
Perform
such other functions as assigned by law, the Corporation's Charter or Bylaws, or the Board.
Notwithstanding
anything in this Charter, the Committee shall not exercise any powers or duties, or take any action, that: (i) may not be delegated by the Board under the General
Corporation Law of the State of Delaware or the Company's bylaws; or (ii) have or has been delegated to other committees of the Board.
MEETINGS
The Committee shall meet as often as necessary or appropriate to carry out its responsibilities under this Charter, but it is expected that the
Committee will meet at least two times each year. Meetings of the Committee may be called by any member of the Committee. The Chairman of the Committee, in consultation with the other Committee
members, shall determine the frequency and length of the Committee meetings and shall set meeting agendas consistent with this Charter. Committee members shall be given notice of a meeting at least
24 hours in advance by telephone, facsimile or electronic transmission. Any such notice need not be given to any Committee member who attends such meeting without protesting the lack of notice
to him or her prior to or at the commencement of such meeting, or to any member who submits a signed waiver of notice, whether before or after such meeting. A majority of the members of the Committee
shall constitute a quorum. The Committee shall act on the affirmative vote of a majority of members present at a meeting at which a quorum is present. Without a meeting, the Committee may act by
unanimous written consent of all members. Written minutes of Committee meetings shall be maintained and filed with the books and records of the Company. Any member of the Board shall be provided with
copies of such Committee minutes if requested. The Committee shall determine its own rules and procedures.
Effective
date: [ · ], 2020(1)
-
(1)
-
Note to Draft: To be the closing date of the proposed transaction.
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EXHIBIT G-4
[COMBINED CORPORATION]
RELATED PARTY TRANSACTIONS COMMITTEE CHARTER
PURPOSE
The Related Party Transactions Committee (the "Committee") shall be a committee of the Board of
Directors (the "Board") of [Combined Corporation] (the "Company") and shall
operate according to the procedures provided in this charter. The Board has adopted this charter to establish the governing principles of the Committee (the
"Charter").
COMPOSITION
The Committee shall be comprised of six directors, three of which shall be WillScot Continuing Directors (as defined in the Bylaws of the
Company) and three of which shall be Mobile Mini Continuing Directors (as defined in the Bylaws of the Company). Each such director shall: (i) be determined by the Board to be "independent" in
accordance with Section 10C-1 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules and regulations promulgated
thereunder by the SEC, (ii) be determined by the Board to meet the independence requirements of the Nasdaq Stock Market ("Nasdaq"), including
pursuant to Nasdaq Rule 5605(a)(2) and (iii) be determined by the Board to not be affiliated with (x) TDR Capital LLP
("TDR"), (y) directors, officers, employees, consultants, advisors, accountants and other agents and representatives of TDR, and
(z) investors who beneficially own a 15% or more interest in any funds advised by TDR. The Committee shall not include any TDR Continuing Directors (as defined in the Bylaws of the Company).
Appointments
to the Committee (including the aforementioned Board determinations and designation of the chairperson of the Committee) shall be made by the Board on an annual basis taking
into consideration the recommendations of the Nominating and Corporate Governance Committee of the Board. Each member shall be subject to annual reconfirmation and may be removed by the Board at any
time, with or without cause.
POLICIES AND PROCEDURES
1. Policy. It is the policy of the Board that all Related Party Transactions, as that term is defined below,
including material modifications to Related Party Transactions,
shall be subject to approval or ratification in accordance with the procedures set forth below. In addition, any existing Related Party Transaction shall not continue past its next contractual
termination date nor shall any material provision in any existing Related Party Transaction be waived or amended unless, in each case, it is approved in accordance with the procedures set forth below.
The Committee shall review and may amend this policy from time to time, as appropriate.
2. Procedures. The Committee shall review the material facts of all Related Party Transactions and
either approve or disapprove of the Related Party Transaction, subject to the
exceptions described below. In determining whether to approve or ratify a Related Party Transaction, the Committee will take into account, among other factors it deems appropriate, the material terms
of the transaction, the nature of the Related Party's interest in the transaction, the significance of the transaction to the Related Party, the nature of the Related Party's relationship with the
Company, the significance of the transaction to the Company, and whether the transaction would be likely to impair the judgment of a director or executive officer of the Company.
No
director shall participate in any discussion or approval of a Related Party Transaction as to which he or she (or as to which a family member of such director) is a Related Party, except that the
director shall provide all material information concerning the Related Party Transaction to the Committee.
If
any executive officer of the Company becomes aware of a Related Party Transaction that the Committee has not approved or ratified, he or she shall promptly inform the Committee. The
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Committee
shall consider all of the relevant facts and circumstances available to the Committee, and if the Related Party Transaction is pending or ongoing, the Committee may ratify, amend or
terminate the transaction; if the Related Party Transaction has been completed, the Committee may ratify or rescind the Transaction; and in either case, the Committee may direct one or more executive
officers, the Company's internal auditors, or the Company's independent auditors to evaluate the Company's internal controls and procedures to determine why the transaction was not submitted to the
Committee for prior approval and to report whether any changes to the Company's internal controls and procedures are recommended.
If
a Related Party Transaction will be ongoing, the Committee may establish guidelines for the Company's management to follow in its ongoing dealings with the Related Party. Thereafter, the Committee,
on at least an annual basis, shall review and assess ongoing transactions with the Related
Party to determine that they are in compliance with the Committee's guidelines and that the Related Party Transaction remains appropriate.
3. Standing Pre-Approval for Certain Related Party Transactions. The Committee has reviewed the types
of Related Party Transactions described below and determined that each of the following Related Party Transactions shall be
deemed to be pre-approved by the Committee, even if the aggregate amount involved is expected to exceed $120,000.
-
(a)
-
Any
employment arrangement with, or compensation or benefit for, an executive officer of the Company if (i) the compensation is required to be reported in the
Company's proxy statement pursuant to Item 402 of Regulation S-K or would have been required to be reported in the Company's proxy statement pursuant to Item 402 of
Regulation S-K if the executive officer had been a "named executive officer," and (ii) the Company's Compensation Committee approved such arrangement, compensation or benefit, or such
arrangement, compensation or benefit is available to employees generally.
-
(b)
-
Any
compensation paid to a director if the compensation is required to be reported in the Company's proxy statement pursuant to Item 402 of
Regulation S-K.
-
(c)
-
Any
transaction where the Related Party's interest arises solely from the ownership of the Company's common stock and all holders of the Company's common stock
received the same benefit on a pro rata basis (e.g., dividends).
4. Definitions.
-
(a)
-
A
"Related Party Transaction" is any transaction, arrangement or relationship or series of similar transactions,
arrangements or relationships (including any indebtedness or guarantee of indebtedness) in which (a) the aggregate amount involved will or is expected to exceed $120,000 in any calendar year,
(b) the Company or its subsidiaries is a participant, and (c) any Related Party has a direct or indirect material interest. For the avoidance of doubt, the Shareholders Agreement dated
as of [ ] by and among the Company, Sapphire Holding S.à.r.l., TDR Capital II Holdings L.P. and TDR Capital LLP is a Related Party
Transaction and the Company's entry into this Shareholders Agreement prior to the date hereof is acknowledged by the Committee.
-
(b)
-
A
"Related Party" is any (a) person who is or was (since the beginning of the last fiscal year, even if they
do not presently serve in that role) an executive officer, director or nominee for election as a director of the Company, (b) greater than 5 percent beneficial owner of the Company's
common shares, (c) an immediate family member of any of the foregoing, or (d) a firm, corporation or other entity at which a person described in (a), (b) or (c) is employed
or in which he or she is a partner or principal or in a similar position or has a 5 percent or greater beneficial ownership interest.
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-
(c)
-
"Immediate family member" includes a person's spouse, parents, stepparents, children, stepchildren, siblings,
mothers- and fathers-in-law, sons- and daughters-in-law, and brothers-and sisters-in-law and anyone residing in such person's home (other than a tenant or employee).
MEETINGS
The Committee shall meet as often as it determines necessary or appropriate to carry out its responsibilities under this Charter. The members of
the Committee may designate by majority vote a member to act as chairperson at meetings of the Committee. The Committee may request any officer or employee of the Company or the Company's outside
counsel or independent auditor to attend a meeting of the Committee or to meet with any members of, or consultants to, the Committee. The Committee shall be fully empowered to obtain assistance from
employees of the Company, including its legal and financial staff, to retain independent legal, financial and other advisors, at the Company's expense, as the Committee deems reasonably necessary and
to not approve any transaction or other matter submitted to the Committee for approval (and such non-approval shall
be binding on the Board). The Committee shall have sole authority to approve related fees and retention terms. Written minutes of Committee meetings shall be maintained.
Meetings
of the Committee may be called by any member of the Committee. The chairperson of the Committee, in consultation with the other Committee members, shall determine the frequency
and length of the Committee meetings and shall set meeting agendas consistent with this Charter. Committee members shall be given notice of a meeting at least 24 hours in advance by telephone,
facsimile or electronic transmission. Any such notice need not be given to any Committee member who attends such meeting without protesting the lack of notice to him or her prior to or at the
commencement of such meeting, or to any member who submits a signed waiver of notice, whether before or after such meeting.
Effective
date: [ · ], 2020(1)
-
(1)
-
To
be the closing date of the proposed transaction.
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EXHIBIT G-5
[Combined Corporation]
SECURITIES TRADING POLICY
PURPOSE
The Board of Directors (the "Board") of [Combined Corporation] (the
"Company") has adopted this Securities Trading Policy (this "Policy") to provide guidelines to all
officers, directors and employees of the Company with respect to transactions in the Company's securities, and the handling of confidential information about the
Company and the companies with which the Company does business, including compliance with securities laws that prohibit certain persons who are aware of material non-public information (commonly known
as "MNPI") about a company from (i) trading in securities of that company and (ii) providing material non-public information to other persons who may trade on the basis of that
information.
Federal
and state securities laws prohibit the purchase or sale of a company's securities by anyone who is aware of material information about a company that is not generally known by or
available to the public. These laws also prohibit anyone who is aware of material non-public information from disclosing this information to others who may trade. Companies and their controlling
persons may also be subject to liability if they fail to take reasonable steps to prevent insider trading by company personnel.
This
Policy is designed to prevent insider trading or even allegations of insider trading. Your strict adherence to this Policy will help safeguard both your and our reputation and will
further ensure that we conduct our business with the highest level of integrity and in accordance with the highest ethical standards.
COVERED PERSONS
This Policy applies to:
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you as an officer, director and/or employee of the Company or one of its subsidiaries;
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the family members and others who reside in your household, and to any family members who do not live in your household but whose transactions
in Company Securities (as defined below) are directed by you or are subject to your influence or control (such as parents, in-laws or children who consult with you before they trade in Company
Securities) ("Family Members");
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any entities, such as corporations, partnerships or trusts, that you influence or control ("Controlled
Entities"); and
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our contractors or consultants, who have access to material non-public information about the Company, and their Family Members and Controlled
Entities.
We
refer to the individuals and entities listed above as "Covered Persons" in this Policy, and to be clear, transactions by your Family
Members and Controlled Entities will be treated as your transactions under this Policy and federal securities laws.
COVERED TRANSACTIONS
This Policy applies to virtually all transactions in the Company's securities, including common stock, options to purchase common stock,
preferred stock, warrants, debt securities (e.g., convertible, senior or subordinated notes) and any other securities issued by the Company ("Company
Securities"). Company Securities also include derivative securities relating to the Company's stock, even if not issued by the Company, such as exchange-traded options
(e.g., puts and calls).
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RESPONSIBILITY
You have ethical and legal obligations to maintain the confidentiality of information about the Company and to not engage in transactions in
Company Securities while in possession of material non-public information. You are responsible for making sure that you and your Family Members and Controlled Entities comply with this Policy. In all
cases, the responsibility for determining whether an individual is in possession of material non-public information rests with that individual, and any action on the part of the Company, our General
Counsel, or any other employee or
director pursuant to this Policy (or otherwise) does not in any way constitute legal advice or insulate an individual from liability under applicable securities laws. You could be subject to severe
legal penalties and disciplinary action by the Company for any conduct prohibited by this Policy or applicable securities laws, as described below under the heading "Consequences of Violations."
ADMINISTRATION
This Policy will be administered by our General Counsel and any other employees of the Company designated by the General Counsel. All
determinations and interpretations by our General Counsel will be final and not subject to review.
POLICY STATEMENT
It is the Company's policy that a Covered Person, who is aware of material non-public information relating to the Company, may not,
directly or indirectly through other persons or entities:
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engage in transactions in Company Securities, except as specified in this Policy under the headings "Transactions Under Company Plans,"
"Transactions Not Involving a Purchase or Sale" and "Rule 10b5- 1 Plans;"
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recommend the purchase or sale of any Company Securities;
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disclose material non-public information to persons within the Company whose jobs do not require them to have that information, or outside of
the Company to other persons (including, but not limited to, family, friends, business associates, investors and third-party service providers, such as consulting firms), unless any such disclosure is
made in accordance with the Company's policies regarding the protection or authorized external disclosure of information regarding the Company; or
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assist anyone engaged in the above activities.
In
addition, it is our policy that no Covered Person who, in the course of working for or with the Company, learns of material non-public information about a company with which the
Company does business, including a customer or supplier of the Company, may trade in that company's securities until the information becomes public or is no longer material.
Unless
specified in this Policy, there are no exceptions to this Policy. Transactions that may be necessary or justifiable for independent reasons (such as the need to raise money for an
emergency expenditure), or small transactions, are not exempt from this Policy. Federal securities laws do not recognize mitigating circumstances, and in any event, even the appearance of an improper
transaction must be avoided to preserve the Company's reputation for adhering to the highest standards of conduct.
Remember,
it makes no difference whether or not you relied upon or used material non-public information in deciding to trade: the bottom line is that if you are aware of material
non-public information about the Company, the prohibitions set forth in this Policy apply.
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MATERIAL NON-PUBLIC INFORMATION
Material Information. Information is considered "material" if a reasonable investor would consider the information important in making a
decision to
buy, hold or sell securities. Any information that could be expected to affect a company's stock price (positively or negatively) should be considered material. There is no bright-line standard for
assessing materiality; instead, materiality is based on an assessment of all of the facts and circumstances and is often evaluated by enforcement authorities with the benefit of hindsight. While it is
not possible to define all categories of material information, some examples of information that ordinarily would be regarded as material are:
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projections of future earnings or losses, or other earnings guidance;
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changes to prior earnings guidance, or the decision to suspend earnings guidance;
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a proposed merger, acquisition, or joint venture;
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a proposed acquisition or disposition of a significant asset;
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a restructuring;
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a significant related-party transaction;
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a change in dividend policy, the declaration of a stock split, or offering additional securities;
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changes in bank borrowings or other financing transactions out of the ordinary course;
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the establishment of a repurchase program for Company Securities;
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a change in management;
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a change in auditors or notification that the auditor's reports may no longer be relied upon;
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pending or threatened significant litigation, regulatory action or investigation, or the resolution of such litigation, action or
investigation;
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impending bankruptcy or the existence of severe liquidity problems;
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cybersecurity risks and incidents, including vulnerabilities and breaches;
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the gain or loss of a significant customer or supplier; or
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the imposition of a ban on trading in Company Securities or the securities of another company.
When Information is Considered Public. Information that has not been disclosed to the public is generally considered to be non-public
information. In
order to establish that the information has been disclosed to the public, it may be necessary to demonstrate that the information has been widely disseminated. Information is considered to be widely
disseminated if it has been disclosed through channels such as Bloomberg, the Dow Jones "broad tape," newswire services, a broadcast on widely-available radio or television programs, publication in a
widely-available newspaper, magazine or news website, or public disclosure documents filed with the U.S. Securities and Exchange Commission (the "SEC")
that are available on the SEC's website. By contrast, information is probably not considered to be widely disseminated if available only to the Company's employees, if it is only available to a select
group of analysts, brokers and institutional investors or if it only appears on the Company's website.
Once
information is widely disseminated, it is still necessary to provide the investing public with sufficient time to absorb the information in order to avoid the implication of
impropriety. Ordinarily, information should not be considered public until two full business days have passed after its formal release to the market. For example, (i) if the Company makes an
announcement before the market opens on a Monday, you should not trade in Company Securities until Wednesday; or (ii) if the Company makes an announcement after the market closes on a Friday,
you should not trade in
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Company
Securities until Wednesday. Depending on the circumstances and the importance of the information at hand, the Company may determine that a longer or shorter period should apply to the release
of specific material non-public information.
TRANSACTIONS UNDER COMPANY PLANS
This Policy does not apply to the following transactions, except as specifically noted:
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Stock Option Exercises. This Policy does not apply to the exercise of a
stock option acquired by a director, officer or employee pursuant to the Company's incentive compensation plans or to the exercise of a tax withholding right pursuant to which a Covered Person has
elected to have the Company withhold shares subject to an option to satisfy tax withholding requirements. This Policy does apply, however, to any sale of stock as part of a broker-assisted cashless
exercise of an option or any other market sale for the purpose of generating the cash needed to pay the exercise price of an option.
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Restricted Stock Awards. This Policy does not apply to the vesting of
restricted stock or the exercise of a tax withholding right pursuant to which you elect to have the Company withhold shares of stock to satisfy tax withholding requirements upon the vesting of any
restricted stock. The Policy does apply, however, to any market sale of restricted stock.
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401(k) Plan. This Policy does not apply to purchases of Company Securities
in the Company's 401(k) plan resulting from your periodic contribution of money to the plan pursuant to your payroll deduction election. This Policy does apply, however, to certain elections you may
make under the 401(k) plan, including: (a) an election to increase or decrease the percentage or amount of your periodic contributions that will be allocated to the Company stock fund;
(b) an election to make an intra-plan transfer of an existing account balance into or out of the Company stock fund; and (c) an election to borrow money against your 401(k) plan account
if the loan will result in a liquidation of some or all of your Company stock fund balance.
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Other Similar Transactions. Any other purchase of Company Securities
directly from the Company or sales of Company Securities to the Company are not subject to this Policy.
TRANSACTIONS NOT INVOLVING A PURCHASE OR SALE
Bona fide gifts are not transactions subject to this Policy, unless the person making the gift
(i) has reason to believe that the recipient intends to sell the Company Securities while the Covered Person is aware of material non-public information or (ii) is subject to the trading
restrictions specified below under the heading "Additional Procedures" and the sales by the recipient of the Company Securities occur during a Blackout Period (as defined below). Moreover,
transactions in mutual funds that are invested in Company Securities are not transactions subject to this Policy.
SPECIAL AND PROHIBITED TRANSACTIONS
Certain types of transactions pose a heightened legal risk and/or appearance of improper conduct. We have therefore adopted the following
specific policies:
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Short-Term Trading. Short-term trading of Company Securities may be
distracting to the person and may unduly focus the person on the Company's short-term stock market performance rather than the Company's long-term business objectives. For these reasons, any director
or Section 16 officer who purchases Company Securities in the open market may not sell any Company Securities of the same class during the six-month period following the purchase (or vice
versa).
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Frequent Trading. Frequent trading can be time consuming and distracting,
and frequent trading of Company Securities can create an appearance of wrongdoing even if the decision to trade was
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ADDITIONAL PROCEDURES
The Company has established additional procedures in order to assist the Company in the administration of this Policy, to facilitate compliance
with laws prohibiting insider trading while in possession of material non-public information and to avoid the appearance of any impropriety.
Individuals
and entities subject to our quarterly or event-specific trading restrictions as described below, including directors, officers, and employees of the Company or one of its
subsidiaries, as well as their respective Family Members and Controlled Entities, as such individuals have been designated and notified by our General Counsel, are referred to herein as
"Designated Persons."
Pre-Clearance Procedures
Designated Persons may not engage in any transaction in Company Securities without first obtaining pre-clearance of the transaction in writing
from our General Counsel, who must consult with the Chairman of the Board (or, if the Chairman of the Board proposes to make any transaction in Company Securities, then a member of the Audit Committee
of the Board) on any request for pre-clearance. A request for pre-clearance should be submitted to our General Counsel in writing at least three business days in advance of the proposed transaction.
Our General Counsel will make every effort to respond to requests as quickly and expeditiously as possible. However, our General Counsel is not obligated to approve a transaction submitted for
pre-clearance, and he or she may determine not to permit the trade.
If
our General Counsel proposes to make any transaction in Company Securities, then our Chief Executive Officer (who must consult with the Chairman of the Board and with assistance from
counsel other than our General Counsel) will be responsible for pre-clearing or denying the proposed trade in accordance with the procedures outlined herein.
If
a request for pre-clearance is denied, then the individual who made the request should refrain from initiating any transaction in Company Securities and should not inform any other
person of the restriction. If a request for pre-clearance is approved, then the individual who made the request has three business days to affect the transaction (or, if sooner, before commencement of
a quarterly or event-driven Blackout Period). In the case of a pre-clearance for a 10b5-1 Plan, the plan must be established within seven business days (or, if sooner, before commencement of a
quarterly or event-driven Blackout Period).
When
a request for pre-clearance is made, the requestor should carefully consider whether he or she may be aware of any material non-public information about the Company and should
describe fully those circumstances when requesting pre-clearance.
To
facilitate the process, the Company has prepared the pre-clearance form attached to this Policy as Exhibit A. You are encouraged to complete and provide the pre-clearance form
to our General Counsel when requesting pre- clearance. You remain obligated to timely submit pre-clearance requests in writing, however, should you choose not to complete and return the pre-clearance
form attached to this Policy.
Under
no circumstance may a person trade or initiate a 10b5-1 Plan while aware of material non-public information about the Company, even if pre-cleared. Thus, if you become aware of
material non-public information after receiving pre-clearance, but before the trade has been executed or the 10b5-1 Plan has been initiated, then you must not affect the pre-cleared transaction or
initiate the pre-cleared plan.
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Quarterly Trading Restrictions
Designated Persons must not trade Company Securities during certain periods ("Blackout Periods")
closely related to the preparation and announcement of our earnings. Our General Counsel, in consultation with our Chief Executive Officer and Chief Financial Officer, will determine which employees
will be subject to these quarterly trading restrictions and notify such Designated Persons that they are subject to the restrictions. Our Blackout Periods include:
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with respect to our first fiscal quarter, the Blackout Period will begin on the 20th calendar day of March and end after two full
business days have passed after the public release of our earnings results for the first quarter;
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with respect to our second fiscal quarter, the Blackout Period will begin on the 20th calendar day of June and after two full business
days have passed after the public release of our earnings results for the second quarter;
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with respect to our third fiscal quarter, the Blackout Period will begin on the 20th calendar day of September and end after two full
business days have passed after the public release of our earnings results for the third quarter; and
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with respect to our fourth fiscal quarter, the Blackout Period will begin on the 15th calendar day of December and end on the third
business day following the date of the public release of our earnings results for the fourth quarter.
Under
very limited circumstances, a person (other than our directors and Section 16 officers) subject to this restriction may be permitted to trade during a Blackout Period, but
only if our General Counsel concludes that the person does not in fact possess material non-public information. Persons wishing to trade during a Blackout Period must contact our General Counsel for
approval at least three business days in advance of any proposed transaction involving Company Securities, as described above.
Event-Specific Trading Restriction Periods
There may be times when our directors or a limited number of officers and employees have knowledge of an event (e.g., a potential
transaction) that is or may be material to the Company. It may be appropriate in these circumstances to prohibit those directors, officers and employees, as well as their Family Members and Controlled
Entities, from trading Company Securities while the event remains material and nonpublic. Our General Counsel, in consultation with our Chief Executive Officer and Chief Financial Officer, will
determine whether an event is material, and whether certain officers and employees will be subject to the event-specific trading restrictions, and notify such Designated Persons.
Moreover,
our financial results may be sufficiently material in a particular quarter that, in the judgment of our General Counsel, these situations would require that Designated Persons
should refrain from trading in Company Securities even sooner than the typical Blackout Period described above. In that situation, our General Counsel may notify Designated Persons that they should
not trade in the Company's Securities, without disclosing the reason for the restriction.
The
existence of an event-specific trading restriction period or extension of a Blackout Period will not be announced to the Company as a whole and should not be communicated to other
persons. Even if our General Counsel has not designated you as a person who should not trade due to an event-specific restriction, you should not trade while aware of material non-public information.
Exceptions will not be granted during an event-specific trading restriction period.
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Exceptions
Quarterly and event-driven trading restrictions do not apply to transactions not subject to this Policy, as described above under the headings
"Transactions Under Company Plans" and "Transactions Not Involving a Purchase or Sale." In addition, the requirement for pre-clearance and the quarterly and event-driven trading restrictions do not
apply to transactions conducted pursuant to approved Rule 10b5-1 plans, described under the heading "Rule 10b5- 1 Plans."
RULE 10B5-1 PLANS
Rule 10b5-1 under the Exchange Act provides a defense from insider trading liability under Rule 10b-5. In order to be eligible to
rely on this defense, a person subject to this Policy must enter into a Rule 10b5-1 plan for transactions in Company Securities that meets certain conditions specified in the Rule (a
"10b5-1 Plan"). If the plan meets the requirements of Rule 10b5-1, Company Securities may be purchased or sold under the 10b5-1 Plan without
regard to certain insider trading restrictions. To comply with the Policy, a 10b5-1 Plan must be approved by our General Counsel and meet the requirements of Rule 10b5-1. In general, a 10b5-1
Plan must be entered into at a time when the person entering into the plan is not aware of material non-public information. Once the plan is adopted, the person must not exercise any influence over
the amount of securities to be traded, the price at which they are to be traded or the date of the trade. The plan must either specify the amount, pricing and timing of transactions in advance or
delegate discretion on these matters to an independent third party.
Any
10b5-1 Plan must be submitted for approval 14 days prior to the entry into the 10b5-1 Plan. No further pre- approval of transactions conducted pursuant to the 10b5-1 Plan will
be required.
POST-TERMINATION TRANSACTIONS
This Policy continues to apply to transactions in Company Securities even after termination of service to the Company. If an individual is in
possession of material non-public information when his or her service terminates, that individual may not trade in Company Securities until that information has become public or is no longer material.
The pre-clearance procedures specified under the heading "Additional Procedures" above, however, will cease to apply to transactions
in Company Securities upon the expiration of any Blackout Period or other Company-imposed trading restrictions applicable at the time of the termination of service.
CONSEQUENCES OF VIOLATION
The purchase or sale of securities while aware of material non-public information, or the disclosure of material non-public information to
others who then trade in the Company's Securities, is prohibited by the federal and state laws. Insider trading violations are pursued vigorously by the SEC, U.S. Attorneys, state enforcement
authorities and private plaintiffs as well as under the laws of foreign jurisdictions. Punishment for insider trading violations is severe and could include significant fines and imprisonment.
While
the regulatory authorities concentrate their efforts on the individuals who trade, or who tip inside information to others who trade, the federal securities laws also impose
potential liability on companies and other "controlling persons" if they fail to take reasonable steps to prevent insider trading by company personnel.
In
addition, an individual's failure to comply with this Policy may subject the individual to Company-imposed sanctions, including dismissal for cause, whether or not the employee's
failure to comply results in a violation of law. Of course, a violation of law, or even an SEC investigation that does not result in prosecution, can tarnish a person's reputation and irreparably
damage a career.
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SUPPORT
Any person who has a question about this Policy or its application to any proposed transaction may obtain additional guidance from our General
Counsel, who can be reached by telephone at [ · ] or by e-mail at
[ · ].
CERTIFICATION
Each of Designated Persons must certify their understanding of, and intent to comply with, this Policy. A form of certification is attached to
this Policy as Exhibit B.
This
Policy was adopted by the Board on [ · ].
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Exhibit A
Request for Pre-Clearance Form
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To:
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General Counsel
[Combined Corporation] (the "Company")
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From:
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Re:
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Proposed transaction in Company Securities
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This
is to advise you that the undersigned intends to execute a transaction in the Company's securities on [ ]
[ ], 20[ ], and thereafter until the trading window shall close and does hereby request that the Company pre-clear the
transaction as required by its Securities Trading Policy (the "Policy").
The
general nature of the transaction is as follows (e.g., open market purchase of 10,000 shares of common stock through NASDAQ or privately-negotiated sale of warrants for the
purchase of 5,000 shares of common stock):
The
undersigned is not in possession of material non-public information (as described in the Policy) about the Company and will not enter into the transaction if the undersigned comes
into possession of any material non-public information about the Company between the date hereof and the proposed trade execution date.
The
undersigned has read and understands the Policy [and the Company's Section 16 Compliance Policy] and certifies that the above proposed transaction will
not violate the Policy [and the Section 16 Compliance Policy].*
The
undersigned agrees to advise the Company promptly if, as a result of future developments, any of the foregoing information becomes inaccurate or incomplete in any respect. The
undersigned understands that the Company may require additional information about the transaction, and agrees to provide such information upon request.
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Dated: , 20[ ]
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Very truly yours,
[Signature]
[Print Name]
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Approved:
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General Counsel of [Combined Corporation]
Dated: , 20[ ]
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Bracketed
language in this paragraph need only appear in forms submitted by directors and Section 16 directors and officers.
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Exhibit B
Form of Compliance Certification
CERTIFICATION
I
certify that:
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I
have read and understand [Combined Corporation]'s (the "Company") Securities Trading Policy
(the "Policy"). I understand that the General Counsel is available to answer any questions I have regarding the Policy.
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(ii)
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Since
the date on which the Policy was adopted, or such shorter period of time that I have been an employee of the Company, I have complied with the Policy.
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(iii)
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I
will continue to comply with the Policy for as long as I am subject to it.
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Print name:
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Signature:
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Date:
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Annex B
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
[COMBINED CORPORATION]
The
present name of the corporation is WillScot Corporation. The corporation was incorporated under the name "Double Eagle Acquisition Corp." by the filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware on November 29, 2017. This Amended and Restated Certificate of Incorporation of the corporation, which
restates and integrates and also further amends the provisions of the corporation's Certificate of Incorporation, was
duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware. The Certificate of Incorporation of the corporation is hereby
amended, integrated and restated to read in its entirety as follows:
ARTICLE I
Name
The
name of the Corporation is [Combined Corporation] (the "Corporation").
ARTICLE II
Registered Agent; Registered Office
The
address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The
name of the Corporation's registered agent at such address is The Corporation Trust Company.
ARTICLE III
Purposes
The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the
"DGCL").
ARTICLE IV
[Reserved]
ARTICLE V
Capital Stock
1. Authorized Shares.
(a) The
total number of shares of all classes of stock that the Corporation is authorized to issue is 501,000,000 shares of stock, consisting of (i) 1,000,000 shares
of Preferred Stock, par value $0.0001 per share ("Preferred Stock") and (ii) 500,000,000 shares of common stock, par value $0.0001 per share
("Common Stock").
(b) Immediately
upon the effectiveness (the "Effective Time") of this Amended and Restated Certificate of Incorporation (as
amended from time to time, the "Certificate of Incorporation"), each share of Class A Common Stock, par value $0.0001 per share (the
"Class A Common Stock") issued and outstanding or held as treasury stock immediately prior to the Effective Time shall, automatically and without
the need for any further action, be reclassified as, and shall be converted into, one validly issued, fully paid and nonassessable share of Common Stock. Any stock certificate that immediately prior
to the Effective Time represented shares of Class A Common Stock shall from and after the Effective Time be deemed to represent shares of Common Stock into which the shares formerly
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represented
by such certificate have been reclassified and converted, without the need for surrender or exchange thereof.
2. Preferred Stock. Preferred Stock may be issued from time to time in one or more series pursuant to
a resolution or resolutions providing for such issue duly adopted by the Board
of Directors of the Corporation (the "Board") and the filing of a certificate pursuant to the applicable law of the State of Delaware (a
"Preferred Designation"), authority to do so being hereby expressly vested in the Board. The Board is further authorized, subject to limitations
prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of
Preferred Stock, including without limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or
any of the foregoing. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any time outstanding. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number
of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote
thereon, irrespective of the provisions of Section 242(b)(2) of the DGCL, subject to obtaining a vote of the holders of any series of Preferred Stock, if such a vote is required pursuant to the
terms of the Certificate of Incorporation (including any Preferred Designation).
3. Common Stock.
(a) Except
as otherwise required by law or the Certificate of Incorporation (including any Preferred Designation), the holders of the Common Stock shall possess all voting
power with respect to the Corporation. The holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the
holders of the Common Stock are entitled to vote; provided, however, that, except as otherwise required
by law, holders of Common Stock shall not be entitled to vote on any amendment to the Certificate of Incorporation (including any Preferred Designation) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon
pursuant to the Certificate of Incorporation (including any Preferred Designation) or pursuant to the Section 242(b)(2) of the DGCL (or any other similar, successor provision thereof).
(b) Except
as otherwise required by law or the Certificate of Incorporation (including any Preferred Designation), at any annual or special meeting of the stockholders of
the Corporation, the holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders.
(c) Subject
to the rights of the holders of any series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
(d) Subject
to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board, the
Chairman of the Board or the Chief Executive Officer of the Corporation.
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ARTICLE VI
Bylaws
In
furtherance and not in limitation of the powers conferred by statute, the Board shall have the power to adopt, amend, repeal or otherwise alter the bylaws of the Corporation (the
"Bylaws") without any action on the part of the stockholders. The Bylaws may also be amended, supplemented or repealed by the stockholders at an annual
or special meeting of the stockholders, the notice for which designates that an amendment, supplement or repeal of one or more of such sections is to be considered, and only by an affirmative vote of
the holders of a majority in voting power of the outstanding shares of stock entitled to vote upon such amendment, supplement or repeal, voting as a single class.
ARTICLE VII
Directors
1. Board of Directors. The business and affairs of the Corporation shall be managed by or under the
direction of the Board. In addition to the powers and authority expressly conferred
upon them by statute or by the Certificate of Incorporation or the Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by
the Corporation.
2. Number; Term; Election; Qualification. The number of directors that constitutes the Board shall be
fixed from time to time by resolution of the Board in accordance with the Bylaws, and shall consist of
not less than three or more than thirteen directors. The Board shall be divided into three classes designated Class I, Class II and Class III. The number of directors elected to
each class shall be as nearly equal in number as possible. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board. Each Class I director
shall be elected to an initial term to expire at the first annual meeting of stockholders following the Effective Time, each Class II director shall be elected to an initial term to expire at
the second annual meeting of stockholders following the Effective Time and each Class III director shall be elected to an initial term to expire at the third annual meeting of stockholders
following the Effective Time. Upon the expiration of the initial terms of office for each class of directors, the directors of each class shall be elected for a term of three years to serve until
their successors have been duly elected and qualified or until their earlier resignation or removal, except that if any such election shall not be so held, such election shall take place at a
stockholders' meeting called and held in accordance with the DGCL. Each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation, or
removal. If the number of directors is hereafter changed, no decrease in the number of directors constituting the Board shall shorten the term of any incumbent director.
3. Removal and Vacancies. Subject to the rights of the holders of any series of Preferred Stock,
vacancies occurring on the Board for any reason and newly created directorships resulting
from an increase in the authorized number of directors may be filled only: (i) prior to the third annual meeting of stockholders following the Effective Time, by the Nominating and Corporate
Governance Committee and (ii) from and after the third annual meeting of stockholders following the Effective Time, by a majority of the directors then in office, although less than a quorum,
or by a sole remaining director. A person so elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been
chosen and until his or her successor shall be duly elected and qualified.
4. Written Ballot. Unless and except to the extent that the Bylaws shall so require, the election of
directors of the Corporation need not be by written ballot.
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ARTICLE VIII
Limitation of Liability and Indemnification
1. Limitation of Liability. To the fullest extent permitted by the DGCL as it presently exists or may
hereafter be amended, a director of the Corporation shall not be personally liable to
the Corporation or to its stockholders for monetary damages for any breach of fiduciary duty as a director. No amendment to, modification of, or repeal of this Article VIII, Section 1
shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such
amendment.
2. Indemnification. The Corporation shall, in accordance with this Certificate of Incorporation and
the Bylaws, indemnify, advance expenses, and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the Corporation), any person (a
"Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of
the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding) or advancement of expenses not paid in full, the Corporation shall be
required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized in the specific case by the Board. Any amendment, repeal or modification of this Section 2 shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or modification.
3. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
ARTICLE IX
Exclusive Jurisdiction for Certain Actions
1. Exclusive Forum. Unless the Board or one of its duly authorized committees otherwise approves in
writing, the selection of an alternate forum, the Court of Chancery of the State
of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, the Superior Court of the State of Delaware, or, if the Superior Court of the State of Delaware also does
not have jurisdiction, the United States District Court for the District of Delaware) shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee to the
Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or
the Bylaws, (iv) any action to interpret, apply, enforce or determine the validity of the Certificate of Incorporation or the Bylaws or (v) any action asserting a claim against the
Corporation governed by the internal affairs doctrine (each, a "Covered Proceeding").
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2. Personal Jurisdiction. If any action the subject matter of which is a Covered Proceeding is filed
in a court other than the Court of Chancery of the State of Delaware, or, where
permitted in accordance with Section 1 above, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (each, a
"Foreign Action") in the name of any person or entity (a "Claiming Party") without the prior written
approval of the Board or one of its duly authorized committees, such Claiming Party shall, to the fullest extent permitted by law, be deemed to have consented to (i) the personal jurisdiction
of the Court of Chancery of the State of Delaware, or, where applicable, the Superior Court of the State of Delaware and the United States District Court for the District of Delaware, in connection
with any action brought in any such courts to enforce Section 1 above (an "Enforcement Action") and (ii) having service of process made
upon such Claiming Party in any such Enforcement Action by service upon such Claiming Party's counsel in the Foreign Action as agent for such Claiming Party.
3. Notice and Consent. Any person or entity purchasing or otherwise acquiring or holding any interest
in the shares of capital stock of the Corporation shall be deemed to have notice of
and consented to the provisions of this Article IX and waived any argument relating to the inconvenience of the forums reference above in
connection with any Covered Proceeding.
ARTICLE X
Severability
If
any provision or provisions of the Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever:
(i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of the Certificate of Incorporation (including, without limitation,
each portion of any section of the Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of the Certificate of Incorporation (including, without limitation,
each such portion of any section of the Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to
protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
ARTICLE XI
Corporate Opportunity
The
Corporation hereby renounces pursuant to Section 122(17) of the DGCL any interest or expectancy in, or being offered an opportunity to participate in, any business opportunity
or classes or categories of business opportunities that are presented to any of the Corporation's non-employee directors or any of their affiliates (together, an "Identified Person") which may be a
corporate opportunity for such Identified Person and the Corporation or any of its affiliates. In the event that any Identified Person acquires knowledge of a potential transaction or other business
opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its affiliates, such Identified Person shall, to the fullest extent permitted by the DGCL,
have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its affiliates and, to the fullest extent permitted by the DGCL, shall not be liable to
the Company, its affiliates or its stockholders for breach of any fiduciary duty as a stockholder or director of the Company solely by reason of the fact that such Identified Person pursues or
acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person or does not present such corporate opportunity to the Corporation
or its affiliates. Notwithstanding the foregoing, the Corporation does not renounce its interest or expectancy in any
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corporate
opportunity offered to any Identified Person if such opportunity is expressly offered to such Identified Person solely in his or her capacity as a director of the Corporation, and the
foregoing provisions of this Article XI shall not apply to any such corporate opportunity. Notwithstanding anything to contrary herein, the provisions of this Article XI shall have no
further force or effect from and after the earlier of such time as (i) TDR Capital LLP ("TDR") ceases to beneficially own at least 5% of the outstanding shares of Common Stock and
(ii) TDR is not entitled to designate one or more members of the Board in accordance with the Shareholders Agreement, by and among the Corporation, TDR and the other parties thereto (as amended
from time to time).
ARTICLE XII
Amendment
Except
as expressly provided herein, the Corporation reserves the right to amend, alter, change or repeal any provision contained in the Certificate of Incorporation, in the manner now
or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
*
* * * *
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on
[ · ], 2020.
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[COMBINED CORPORATION]
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By:
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Name:
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Bradley Soultz
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Title:
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Chief Executive Officer
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Annex C
AMENDED AND RESTATED BYLAWS
OF
[COMBINED CORPORATION]
[ · ], 2020
Article 1
Stockholders
1.1 Place of Meetings. Meetings of stockholders of [Combined Corporation], a Delaware corporation (the
"Corporation"), shall be held at the place, either within or without the State of Delaware, as may be designated by the Board of Directors of the
Corporation (the "Board of Directors") from time to time; provided, that the Board of Directors may, in
its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2)
of the Delaware General Corporation Law (the "DGCL").
1.2 Annual Meetings. Annual meetings of stockholders shall be held at such date and time as fixed by
the Board of Directors for the purpose of electing directors and transacting any
other business as may properly come before such meetings.
1.3 Special Meetings. Except as otherwise required by law, special meetings of stockholders for any
purpose or purposes may be called at any time only by the Board of Directors, the
Chairman of the Board of Directors or the Chief Executive Officer of the Corporation, to be held at such date and time as shall be designated in the notice or waiver of notice thereof. Only business
within the purposes described in the Corporation's notice of meeting required by Section 1.4 may be conducted at the special meetings. The ability of
the stockholders to call a special meeting is specifically denied.
1.4 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a
meeting, a notice of the meeting shall be given that shall state the place, date and hour
of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Corporation's Amended and Restated Certificate of
Incorporation (as the same may be amended or restated from time to time, the "Certificate of Incorporation") or these Amended and Restated Bylaws (the
"Bylaws"), the notice of any meeting shall be given no fewer than 10 nor more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting.
1.5 Postponement; Adjournments. The Board of Directors, acting by resolution, may postpone and
reschedule or cancel any previously scheduled annual meeting or special meeting of stockholders.
Any annual meeting or special meeting may be adjourned from time to time, whether or not there is a quorum: (a) at any time, upon a resolution by stockholders, if the votes cast in favor of
such resolution by the holders of shares of each voting group entitled to vote on any matter theretofore properly brought before the meeting exceed the number of votes cast against such resolution by
the holders of shares of each such voting group; or (b) at any time prior to the transaction of any business at such meeting, by the Chairman of the Board of Directors or pursuant to a
resolution of the Board of Directors. If the adjournment is for more than 30 days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. At any adjourned meeting at which a quorum shall be present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at
each meeting of stockholders, the presence in person or by proxy of the
holders of shares of stock having a majority of the votes that could be cast by the holders of all outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to
constitute a quorum, and the
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stockholders
present at any duly convened meeting may continue to do business until adjournment notwithstanding any withdrawal from the meeting of holders of shares counted in determining the
existence of a quorum. In the absence of a quorum, the stockholders so present may adjourn the meeting from time to time in the manner provided in Section
1.5 of these Bylaws until a quorum shall
attend. Shares of its own stock belonging to the Corporation or any direct or indirect subsidiary of the Corporation shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
1.7 Organization. Meetings of stockholders shall be presided over by the Chairman of the Board of
Directors, if any, or in his or her absence by the Vice Chairman of the Board of
the Directors, if any, or in his or her absence by the Chief Executive Officer, or in his or her absence by a chairman designated by the Board of Directors, or in the absence of such designation, by a
chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
1.8 Voting; Proxies.
(a) Generally. Unless otherwise required by law or provided in the Certificate of Incorporation, each
stockholder shall be entitled to one vote, in person or by proxy, for each
share of capital stock held by such stockholder.
(b) Voting Matters Other than Elections of Directors. Unless otherwise required by law, the
Certificate of Incorporation, or these Bylaws, any matter, other than the election of directors, brought before any meeting
of stockholders shall be decided by the affirmative vote of the majority of the voting power of the outstanding shares present in person or represented by proxy at the meeting and entitled to vote on
the matter. Notwithstanding the foregoing, in the case of a matter submitted for a vote of the stockholders as to which a stockholder approval requirement is applicable under the stockholder approval
policy of the Nasdaq Stock Market or any other exchange or quotation system on which the capital stock of the Corporation is quoted or traded, the requirements of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any provision of the Internal Revenue Code of 1986, as amended (the
"Code"), the vote required for approval shall be the requisite vote specified in such stockholder approval policy, Rule 16b-3 or Code provision,
as the case may be.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for such stockholder by proxy, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Such authorization may be in a writing executed by the stockholder or his or her authorized
officer, director, employee, or agent. To the extent permitted by law, a stockholder may authorize another person or persons to act for him or her as proxy by transmitting or authorizing the
transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization, or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission, provided that the electronic transmission either sets forth or is submitted with information from which it can be determined
that the electronic transmission was authorized by the stockholder. A copy, facsimile transmission, or other reliable reproduction of the proxy (including any electronic transmission) authorized by
this Section 1.8(c) may be substituted for or used in lieu of the original writing or electronic transmission for any and all purposes for which the
original writing or electronic transmission could be used, provided that such copy, facsimile transmission, or other reproduction shall be a complete reproduction of the entire original writing or
electronic transmission. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.
A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later
date.
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1.9 Fixing of Record Dates. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance, a record date for stockholders entitled to receive notice of the meeting of stockholders or any other action, which, in
the case of a meeting, shall not be more than 60 nor fewer than 10 days before the date of such meeting or, in the case of any other action, shall not be more than 60 days prior to such
other action. If the Board of Directors so fixes a date for the determination of stockholders entitled to receive notice of a meeting of stockholders, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting
shall be the date for making such determination. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
and (2) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the determination of
stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as
that fixed for determination of stockholders entitled to vote.
1.10 List of Stockholders Entitled to Vote. The Corporation shall prepare, at least 10 days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting.
The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, for a period of at least 10 days prior to the meeting, (i) on a reasonably accessible electronic network, provided, that the information required to gain
access to such list is provided with the notice of the meeting; or (ii) during ordinary business hours, at the Corporation's principal place of business. If the meeting is to be held at a
place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder
who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open to the examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
1.11 Notice of Stockholder Business; Nominations.
(a) Annual Meetings of Stockholders. Nominations of one or more individuals to the Board of Directors
(each, a "Nomination," and more than one,
"Nominations," and the individual who is the subject of a Nomination, a "Nominee") and the proposal of
business other than Nominations ("Business") to be considered by the stockholders of the Corporation may be made at an annual meeting of stockholders
only: (1) pursuant to the Corporation's notice of meeting or any supplement thereto (provided, however, that reference in the Corporation's notice of
meeting to the election of directors or to the election of members of the Board of Directors
shall not include or be deemed to include Nominations); (2) by or at the direction of the Board of Directors; or (3) by any stockholder of the Corporation who is a stockholder of record
of the Corporation at the time the notice provided for in this Section 1.11 is received by the Secretary of the Corporation, who is entitled to vote at
the meeting, and who complies with the notice procedures set forth in this Section 1.11. Subclause (3) shall be the exclusive means for a stockholder to
make nominations or submit business (other than matters
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properly
brought under Rule 14a-8 (or any successor thereto) under the Exchange Act and indicated in the Corporation's notice of meeting) before an annual meeting of stockholders.
(b) Special Meetings of Stockholders. Only such Business shall be conducted at a special meeting of
stockholders of the Corporation as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting (provided, however, that reference in the Corporation's notice of meeting to the election of directors or to the
election of members of the Board of Directors shall not include or be deemed to include Nominations). Nominations may be made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting: (1) by or at the direction of the Board of Directors; or (2) provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 1.11 is received by the Secretary of the Corporation,
who is entitled to vote at the meeting and upon such election, and who complies with the notice procedures set forth in
this Section 1.11. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder entitled to vote in such election of directors may make Nominations of one or more individuals (as the case may be) for election to such positions as specified in
the Corporation's notice of meeting, if the stockholder's notice required by Section 1.11(c)(1) shall be received by the Secretary of the Corporation at
the principal executive offices of the Corporation in accordance with Section 1.11(c)(1)(E).
(c) Stockholder Nominations and Business. For Nominations and Business to be properly brought before
an annual meeting by a stockholder pursuant to Section 1.11(a)(3), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation in compliance with
this
Section 1.11, and any such proposed Business must constitute a proper matter for stockholder action. For Nominations to be properly brought before a special meeting by a
stockholder pursuant to Section 1.11(b)(2), the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation
in compliance with this Section 1.11. In either case, the stockholder shall also provide an Update (as defined below) at the times and in the
forms required by this Section 1.11.
(1) Stockholder
Nominations.
(A) Only
individuals subject to a Nomination made in compliance with the procedures set forth in this Section 1.11 shall be
eligible for election at an annual or special meeting of stockholders of the Corporation, and any individuals subject to a Nomination not made in compliance with this Section
1.11 shall not be considered nor acted upon at such meeting of stockholders.
(B) For
Nominations to be properly brought before an annual or special meeting of stockholders of the Corporation by a stockholder pursuant to Section 1.11(a)(3) or Section 1.11
(b)(2), respectively, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation at the principal executive offices of the Corporation pursuant to this Section 1.11. To be timely, the stockholder's notice must
be received by the Secretary of the Corporation as provided in Section 1.11(c)(1)(C) or Section 1.11(c)(1)(D), in the case of an annual meeting
of
stockholders of the Corporation, and Section 1.11(c)(1)(E), in the case of a special meeting of stockholders of the Corporation, respectively. In
addition, the stockholder shall provide an Update at the times and in the forms required by this Section 1.11.
(C) In
the case of an annual meeting of stockholders of the Corporation, to be timely, any Nomination made pursuant to Section
1.11(a)(3) shall be received by the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the
90th day, nor earlier than the close of business on the 120th day, prior to the first anniversary of the preceding year's annual meeting
(provided, however, that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such
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anniversary
date, notice by the stockholder must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on
the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no
event shall the public announcement of an adjournment or postponement of an annual meeting of stockholders of the Corporation commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(D) Notwithstanding
Section 1.11(c)(1)(C), in the event that the number of directors to be elected to the Board of Directors
at an annual meeting of stockholders of the Corporation is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least
100 days prior to the first anniversary of the preceding year's annual meeting, the stockholder's notice required by this Section 1.11 shall also
be considered timely, but only with respect to nominees for the additional directorships, if it shall be received by the Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.
(E) In
the case of a special meeting of stockholders of the Corporation, to be timely, any Nomination made pursuant to Section
1.11(b)(2) shall be received by the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the
120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of such special meeting and of the nominees proposed by the Board of Directors to be elected at such special meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting of stockholders of the Corporation commence a new time period (or extend any time period) for the giving of a stockholder's notice
as described above.
(F) To
be in proper form, a stockholder's notice of Nomination(s) pursuant to Section 1.11(a)(3) or Section 1.11(b)(2) shall be signed by one or more
stockholders of record and by the beneficial owners or owners, if any, on whose behalf the
stockholder or stockholders are acting, shall bear the date of signature of each such stockholder and any such beneficial owner and shall set forth:
(i) the
name and address, as they appear on this Corporation's books, of each such stockholder and the name and address of any such beneficial owner who seeks to make a
Nomination or Nominations;
(ii) the
Share Information (as defined below) relating to each such stockholder and beneficial owner making such Nomination(s);
(iii) a
representation that each such stockholder is a holder of record of shares of the Corporation entitled to vote at such meeting and such stockholder (or qualified
representative of the stockholder) intends to appear in person or by proxy at the meeting to propose such Nomination(s);
(iv) any
other information relating to such stockholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder, including a representation whether the stockholder or any such beneficial owner intends, or is part of a group that intends (x) to deliver
a proxy statement and/or form of proxy to holders of at least the percentage of the
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Corporation's
outstanding capital stock required to elect the Nominee(s); and/or (y) otherwise to solicit proxies from stockholders of the Corporation in support of such Nominee(s);
(v) the
manner in which each such stockholder and any such beneficial owner intend to comply with Regulation 14A under the Exchange Act in seeking to make any
Nomination(s);
(vi) the
name and residence address of each Nominee of any such stockholder and any such beneficial owner;
(vii) the
Share Information relating to each Nominee; for purposes of these Bylaws, "Share Information" shall include:
(i) the class or series and number of shares of the Corporation that are owned, directly or indirectly, of record and/or beneficially by the person in question and any of its affiliates;
(ii) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to
any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a "Derivative Instrument")
directly or indirectly owned beneficially by the person in question and any of its affiliates, and any other direct or indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation; (iii) any proxy, agreement, arrangement, understanding, or relationship pursuant to which such person or any of its affiliates has a right
to vote any shares of any security of the Corporation; (iv) any short interest in any security of the Corporation of such person or any of its affiliates (for purposes of these Bylaws, a person
shall be deemed to have a short interest in a security if such person directly or indirectly, through any agreement, arrangement, understanding, relationship, or otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the value of the subject security); (v) any rights to dividends on the shares of the Corporation owned beneficially by such person and
any of its affiliates that are separated or separable from the underlying shares of the Corporation; (vi) any proportionate interest in shares of the Corporation or Derivative Instruments held,
directly or indirectly, by a general or limited partnership in which such person or any of its affiliates is a general partner or, directly or indirectly, beneficially owns an interest in a general
partner; and (vii) any performance-related fees (other than asset-based fee) that such person or any of its affiliates is entitled to, based on any increase or decrease in the value of shares
of the Corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such person's immediate family sharing the same
household;
(viii) a
description of all agreements, arrangements or understandings between or among each such stockholder and any such beneficial owner and the Nominee, and any other
person or persons (naming such person or persons) pursuant to which such stockholder and any such beneficial owner are seeking to elect or re-elect such Nominee, including without limitation any
agreement, arrangement or understanding with any person as to how each Nominee, if elected as a director of the Corporation, will act or vote on any issue or question;
(ix) a
description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other
material relationships, between or among such stockholder and any such beneficial owner and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each
Nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be
disclosed pursuant to Item 404 in Regulation S-K, promulgated by the SEC, if such stockholder and beneficial owner, or any affiliate or associate thereof or person acting
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in
concert therewith, were the "registrant" for purposes of such rule and each Nominee were a director or executive officer of such registrant;
(x) such
other information regarding each Nominee as would be required to be disclosed in contested solicitations of proxies for elections of directors, or would be
otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act;
(xi) the
written consent of each Nominee to be named in the Corporation's proxy statement and to serve as a director of the Corporation if so elected;
(xii) any
written representations or agreements reasonably requested by the Corporation with respect to or from any such Nominee; and
(xiii) such
other information as may reasonably be requested by the Board of Directors or the Corporation from such stockholder and any such beneficial owner seeking to
elect or re-elect a Nominee and/or from any Nominee such stockholder and any such beneficial owner are seeking to elect or re-elect to determine the background, qualifications, stock ownership, and
the eligibility of such Nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder's understanding of the background, qualifications, stock
ownership, and independence (or lack thereof) of such Nominee.
(2) Stockholder
Business.
(A) Only
such Business shall be conducted at an annual or special meeting of stockholders of the Corporation as shall have been brought before such meeting in compliance
with the procedures set forth in this Section 1.11, and any Business not brought in accordance with this Section
1.11 shall not be considered nor acted upon at such meeting of stockholders.
(B) In
the case of an annual meeting of stockholders of the Corporation, to be timely, any such written notice of a proposal of Business pursuant to Section 1.11(a)(3) shall be received by the Secretary of the
Corporation at the principal executive offices of the Corporation not later than the close
of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year's annual meeting
(provided, however, that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of
such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement of an annual meeting of stockholders of the Corporation commence a new time
period (or extend any time period) for the giving of a stockholder's notice as described above. In addition, the stockholder shall provide an Update at the times and in the forms required by this Section 1.11.
(C) To
be in proper form, a stockholder's notice of a proposal of Business pursuant to Section 1.11(a)(3) shall be
signed by one or more stockholders of record and by the beneficial owners or owners, if any, on whose behalf the stockholder or stockholders are acting, shall bear the date of signature of each such
stockholder and any such beneficial owner and shall set forth:
(i) as
to the Business proposed by such stockholder: (a) a brief description of the corporate action desired to be authorized or taken; (b) the text of the
proposal or Business (including the text of any resolutions proposed for consideration and in the event that such Business includes a proposal to amend the Bylaws of the Corporation, the language of
the proposed amendment); (c) the reasons of each such stockholder and any such beneficial owner for authorizing or taking such corporate action; (d) any material interest in such
corporate action of each such stockholder and any such beneficial owner; and (e) a
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description
of all agreements, arrangements or understandings between such stockholder and any such beneficial owner and any other person or persons (naming such person or persons) in connection with
the proposal of such business by such stockholder;
(ii) the
name and address, as they appear on this Corporation's books, of each such stockholder and any such beneficial owner who seeks to propose such Business;
(iii) the
Share Information relating to each such stockholder and beneficial owner seeking to propose such Business;
(iv) a
representation that each such stockholder is a holder of record of shares of the Corporation entitled to vote at such meeting and such stockholder (or qualified
representative of the stockholder) intends to appear in person or by proxy at the meeting to propose such Business;
(v) any
other information relating to such stockholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to
be made in connection with
solicitations of proxies for, as applicable, the proposal, including a representation whether the stockholder or any such beneficial owner intends, or is part of a group that intends:
(a) to
deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to approve such Business;
and/or
(b) otherwise
to solicit proxies from stockholders of the Corporation in support of such Business; and
(vi) the
manner in which each such stockholder and any such beneficial owner intend to comply with Regulation 14A under the Exchange Act in proposing such Business.
(d) General.
(1) Except
as otherwise provided by law, the Chairman of the meeting of stockholders of the Corporation shall have the power and duty (A) to determine whether a
Nomination or Business proposed to be brought before such meeting was made or proposed in accordance with the procedures set forth in this Section 1.11,
and (B) if any proposed Nomination or Business was not made or proposed in compliance with this Section 1.11, to declare that such Nomination or
Business shall be disregarded or that such proposed Nomination or Business shall not be considered or transacted. Notwithstanding the foregoing provisions of this Section
1.11, if a stockholder (or a qualified representative of such stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a
Nomination or Business, such Nomination or Business shall be disregarded and such Nomination or Business shall not be considered or transacted, notwithstanding that proxies in respect of such vote may
have been received by the Corporation. For purposes of this Section 1.11, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or
partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the
meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(2) For
purposes of this Section 1.11, "public announcement" shall include
disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the SEC.
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(3) Nothing
in this Section 1.11 shall be deemed to affect (a) the rights or obligations, if any, of stockholders of
the Corporation to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 (or any successor thereto) under the Exchange Act or (b) the rights, if any,
of the holders of any series of preferred stock of the Corporation to elect directors pursuant to any applicable provisions of the certificate of incorporation of the Corporation.
(4) A
stockholder proposing a Nomination or Nominations or Business shall update and supplement its notice (an "Update") to
the Corporation of its intent to propose Nominations or Business at an annual meeting of stockholders of the Corporation, if necessary, so that the information provided or required to be provided in
such notice pursuant to this Section 1.11 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the
date that is ten business days prior to the meeting or any adjournment or postponement thereof, and such Update shall be delivered to, or mailed and received by, the Secretary of the Corporation at
the principal executive offices of the Corporation not later than five business days after the record date for stockholders entitled to vote at the meeting (in the case of an Update required to be
made as of such record date) and not later than eight business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first
practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of an Update required to be made as of ten business days prior to the meeting or any adjournment
or postponement thereof) (such Updates within such time periods, "Timely Updates"). For the avoidance of doubt, the obligation to update and supplement
as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation's rights with respect to any deficiencies in any notice provided by a stockholder, extend any
applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal or new or
additional Nominee, including by changing or adding matters, business or resolutions proposed to be brought before a meeting of the stockholders.
Article 2
Board of Directors
2.1 Regular Meetings. Prior to the third annual meeting of stockholders following the date of these Bylaws
(the "Third AMS"), regular
meetings of the Board of Directors shall be held at the Corporation's headquarters and principal executive office, unless both the Chairman of the Board of Directors and the Chief Executive Officer
determine otherwise in their mutual discretion, at such times as the Board of Directors may from time to time determine. From and after the Third AMS, regular meetings of the Board of Directors may be
held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine, and if so determined, notices thereof need not be given.
2.2 Special Meetings. Prior to the Third AMS, special meetings of the Board of Directors may be held
at any time but shall be held at the Corporation's headquarters and principal
executive office unless both the Chairman of the Board of Directors and the Chief Executive Officer determine otherwise in their mutual discretion. From and after the Third AMS, special meetings of
the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chief Executive Officer, the Chairman of the Board of Directors or a majority of
the Whole Board.
2.3 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting thereof by means of conference telephone or
other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section
2.3 shall constitute presence in person at such meeting.
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2.4 Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the
Whole Board shall constitute a quorum for the transaction of business. Except in cases in which the
Certificate of Incorporation, these Bylaws or any agreement binding upon the Corporation otherwise provide, the vote of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. The term "Whole Board" shall mean the total number of authorized directors whether or not there exist any
vacancies in previously authorized directorships. The Board of Directors and the Corporate Governance Committee shall endeavor to fill any vacancies as promptly as practicable.
2.5 Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the
Board of Directors, if any, or in his or her absence by the Vice Chairman of the
Board of Directors, if any, or in his or her absence by the Chief Executive Officer, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
2.6 Chairman, Vice Chairman, and Lead Director of the Board of Directors. The Board of Directors may,
if it so determines, choose a Chairman of the Board of Directors. In addition, the Board of Directors may, if it so determines, choose
a Vice Chairman of the Board of Directors from among its members, who shall undertake duties as the Board of Directors may assign. Further, the Board of Directors may, if it so determines, also select
a Lead Director of the Board of Directors, who, if any, shall be a director of the Corporation who is not also an officer of the Corporation and who shall undertake duties as the Board of Directors
may assign, including, but not limited to, duties otherwise assigned to the Chairman of the Board of Directors or the Vice Chairman of the Board of Directors. Among other duties, the Chairman of the
Board of Directors will assist with, manage or delegate to the Lead Director, as appropriate, the following tasks: (i) acting as the principal liaison between the Corporation's independent
directors and the Chief Executive Officer; (ii) overseeing and providing guidance with regard to agendas for meetings of the Board of Directors; (iii) leading meetings of the Board of
Directors, including executive sessions, but excluding any sessions with only independent directors, which shall be led by the Lead Director for any period in which the Chairman of the Board of
Directors is not independent; and (iv) addressing any other responsibilities as the Board of Directors may designate, from time to time.
2.7 Board of Directors Action by Written Consent Without a Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting, without prior notice and without a vote, if all members of the Board of Directors or such committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions. After an action is taken, the consents shall be filed with the minutes of
proceedings of the Board of Directors or such committee. Such filing shall be in paper form if such minutes are maintained in paper form and shall be in electronic form if such minutes are maintained
in electronic form.
2.8 Fees and Compensation of Directors. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of
directors, or may delegate such authority to an appropriate committee.
2.9 Elections of Directors.
(a) Except
as set forth in this Section 2.9, a majority of the votes cast at any meeting of the stockholders for the election
of directors at which a quorum is present shall elect directors. For purposes of this provision, a "majority of the votes cast" means that the number of
shares voted "for" a director's election exceeds 50% of the number of votes cast with respect to that director's election. Votes cast shall include votes
"for" and "against" that director's election, in each case and exclude abstentions and broker nonvotes
with respect to that director's election. In the event of a Contested
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Election,
directors shall be elected by the vote of a plurality of the votes cast at any meeting for the election of directors at which a quorum is present. For purposes of this provision, a
"Contested Election" is an election of directors of the Corporation as to which the Chairman of the Board of Directors determines that, at the
Determination Date, the number of persons properly nominated to serve as directors exceeds the number of directors to be elected in such election. The "Determination
Date" is: (1) the day after the meeting of the Board of Directors at which the nominees for director of the Board of Directors for such election are approved, when such
meeting occurs after the last day on which a stockholder may propose the nomination of a director for election in such election pursuant to the Certificate of Incorporation or these Bylaws; or
(2) the day after the last day on which a stockholder may propose the nomination of a director for election in such election pursuant to the Certificate of Incorporation or these Bylaws, when
the last day for such a proposal occurs after the meeting of the Board of Directors at which the nominees for director of the Board of Directors for such election are approved, whichever of clause (1)
or (2) is applicable. This determination that an election is a Contested Election shall be determinative only as to the timeliness of a notice of nomination and not otherwise as to its validity. In
all cases, once an election is determined to be a Contested Election, directors shall be elected by the vote of a plurality of the votes cast.
(b) If,
in an election of directors that is not a Contested Election, an incumbent director does not receive a greater number of votes
"for" his or her election than votes "against" his or her election, then such incumbent director shall,
within five days following the certification of the election results, tender his or her written resignation to the Chairman of the Board of Directors contingent on acceptance by the Board of Directors
for consideration by the Nominating and Corporate Governance Committee (the "Corporate Governance Committee"). The Corporate Governance Committee shall
consider such resignation and, within 45 days following the date of the stockholders' meeting at which the election of directors occurred, shall make a recommendation to the Board of Directors
concerning the acceptance or rejection of such resignation. In determining its recommendation to the Board of Directors, the Corporate Governance Committee shall consider all factors deemed relevant
by the members of the Corporate Governance Committee including, without limitation: (1) the stated reason or reasons (if any) why stockholders voted against such director's reelection;
(2) the qualifications of the director (including, for example, whether the director serves on the Audit Committee of the Board of Directors (the "Audit
Committee") as an "audit committee financial expert" and whether there are one or more other directors qualified, eligible, and available to serve on the Audit Committee in
such capacity); (3) relevant stock exchange listing standards and rules and regulations, including those of the Nasdaq Stock Market and the SEC; and (4) whether the director's
resignation from the Board of Directors would be in the best interests of the Corporation and its stockholders.
The
Corporate Governance Committee also shall consider a range of possible alternatives concerning the director's tendered resignation as the members of the Corporate Governance
Committee deem appropriate, including, without limitation, acceptance of the resignation, rejection of the resignation, or rejection of the resignation coupled with a commitment to seek to address and
cure the underlying reasons reasonably believed by the Corporate Governance Committee to have substantially resulted in such director failing to receive the required number of votes for re-election.
The Board of Directors
shall take formal action on the Corporate Governance Committee's recommendation no later than 90 days following the date of the stockholders' meeting at which the election of directors
occurred. In considering the Corporate Governance Committee's recommendation, the Board of Directors shall consider the information, factors, and alternatives considered by the Corporate Governance
Committee and such additional information, factors, and alternatives as the Board of Directors deems relevant in its sole discretion. No director who, in accordance with these provisions, is required
to tender his or her resignation shall participate in the Corporate Governance Committee's deliberations or recommendation, or in the deliberations or determination of the Board of Directors, with
respect to accepting or rejecting his or her resignation as a director.
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If
a majority of the members of the Corporate Governance Committee fail to receive the required number of votes for re-election, then the Board of Directors will establish an ad hoc
committee composed of independent directors then serving on the Board of Directors who were elected at the stockholders' meeting at which the election occurred, and independent directors, if any, who
were not standing for election at such stockholders' meeting (the "Ad Hoc Committee"), consisting of such number of directors as the Board of Directors
may determine to be appropriate, solely for the purpose of considering and making a recommendation to the Board with respect to the tendered resignations. The Ad Hoc Committee shall serve in place of
the Corporate Governance Committee and perform the Corporate Governance Committee's duties for purposes of these provisions. Notwithstanding the foregoing, if an Ad Hoc Committee would have been
created but fewer than three directors would be eligible to serve on it, the entire Board (other than the individual directors whose resignations are being considered) shall make the determination to
accept or reject the tendered resignations without any recommendation from the Corporate Governance Committee and without the creation of an Ad Hoc Committee. Following the decision of the Board of
Directors on the Corporate Governance Committee's recommendation, the Corporation, within four business days after such decision is made, shall publicly disclose, in a Form 8-K filed with the
SEC, the decision of the Board of Directors, together with an explanation of the process by which the decision was made and, if applicable, the reason or reasons of the Board of Directors for
rejecting the tendered resignation.
(c) If
a director's resignation is accepted by the Board of Directors pursuant to this Section 2.9, if a nominee for director
is not elected and the nominee is not an incumbent director whose term would otherwise have expired at the time of the election if a successor had been elected or if a director is no longer entitled
to serve as a director, then such position may be filled only: (i) until the third AMS, by the Corporate Governance Committee and (ii) from and after the Third AMS, by a majority of the
directors then in office, although less than a quorum, or by a sole remaining director.
2.10 Additional Requirements For Valid Nomination of Candidates to Serve as Director and, If Elected, to Be Seated as Directors.
(a) To
be eligible to be a candidate for election as a director of the Corporation at an annual meeting or special meeting of stockholders of the Corporation, a Nominee must
be nominated in the manner prescribed in Section 1.11 and the Nominee, whether nominated by the Board of Directors or by a stockholder, must have
previously delivered (in accordance with the time period prescribed for delivery in a notice to such Nominee given by or on behalf of the Board of Directors), to the Secretary of the Corporation at
the principal executive offices of the Corporation: (1) a completed written questionnaire (in a form provided by the Corporation) with respect to the background, qualifications, stock
ownership, and independence of such Nominee; and (2) a written representation and agreement (in form provided by the Corporation) that such Nominee: (A) is not and, if elected as a
director, during his or her term of office, will not become a party to: (i) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to,
any person or entity as to how such Nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a "Voting
Commitment"); or (ii) any Voting Commitment that could limit or interfere with such Nominee's ability to comply, if elected as a director of the Corporation, with such
Nominee's fiduciary duties under applicable law; (B) is not, and will not become a party to, any agreement, arrangement, or understanding with any person or entity, other than the Corporation,
with respect to any direct or indirect compensation or reimbursement for service as a director that has not been disclosed therein; (C) if elected as a director of the Corporation, will comply
with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading, and other policies and guidelines of the Corporation applicable to directors and in effect
during such person's term in office as a director (and, if requested by any Nominee, the Secretary of the Corporation shall provide to such Nominee all such policies and guidelines then in effect);
and (D) if elected as director
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the Corporation, intends to serve the entire term until the next meeting at which such Nominee would face re-election.
(b) The
Board of Directors may also require any Nominee to furnish such other information as may reasonably be requested by the Board of Directors in writing prior to the
meeting of stockholders at which such Nominee's nomination is to be acted upon for the Board of Directors to determine the eligibility of such Nominee to be an independent director of the Corporation.
2.11 Board Composition.
(a) The
total number of authorized directors shall be fixed from time to time by the affirmative vote of a majority of the Whole Board. The Board of Directors as of the date
of these Bylaws shall consist of eleven directors. Six of such directors shall be Mark S. Bartlett, Gerard E. Holthaus, Gary Lindsay, Stephen Robertson, Jeff Sagansky and Bradley L. Soultz, each of
which shall be designated by WillScot Corporation ("WillScot") (such individuals, together with each individual elected to replace such individuals,
whether as the immediately succeeding director or a future succeeding director for such individual, the "WillScot Continuing Directors"). Five of such
directors shall be Sara R. Dial, Jeffrey S. Goble, Kimberly J. McWaters, Erik Olsson and Michael W. Upchurch, each of which shall be designated by Mobile Mini, Inc.
("Mobile Mini") (such individuals, together with each individual elected to replace such individuals, whether as the immediately succeeding director or
a future succeeding director for such individual, the "Mobile Mini Continuing Directors"). For the avoidance of doubt, Gary Lindsay and Stephen
Robertson shall be appointed by TDR Capital LLP ("TDR"), and any individual (the "TDR Continuing
Directors") elected to replace a TDR Continuing Director, whether as the immediately succeeding director or a future succeeding director for such individual, shall be deemed a
WillScot Continuing Director. Mr. Olsson shall be the Chairman of the Board of Directors and Mr. Holthaus shall be the Lead Director of the Board of Directors (the
"Lead Director").
(b) The
members of the Board of Directors shall be designated into three classes: (i) the Class I Directors, (ii) the Class II Directors and
(iii) the Class III Directors. The individuals classified as Class I Directors shall be subject to reelection at the first annual meeting of the stockholders following the
effectiveness of these Bylaws. The individuals classified as Class II Directors shall be subject to reelection at the second annual meeting of the stockholders following the effectiveness of
these Bylaws. The individuals classified as Class III Directors shall be subject to reelection at the third annual meeting of the stockholders following the effectiveness of these Bylaws. The
directors as of the date of these Bylaws shall be classified as follows:
(1) Class I: Ms. Dial, Mr. Holthaus, Mr. Lindsay and Ms. McWaters;
(2) Class II: Mr. Goble, Mr. Robertson and Mr. Sagansky; and
(3) Class III: Mr. Bartlett, Mr. Olsson, Mr. Soultz, and Mr. Upchurch.
(c) Following
the second annual meeting of stockholders following effectiveness of these Bylaws, the Board of Directors shall reevaluate and determine the independence of
Mr. Olsson under applicable laws and regulations.
2.12 Powers of the Board. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and authority
expressly conferred upon them by statute, by the Certificate of Incorporation or these Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation. As of the date of these Bylaws, the Board of Directors has approved that certain (i) Business Plan, Operating Model and Financial Plan and
(ii) Synergies Plan (together with clause (i), the "Company Strategic Plans"). The Board of Directors shall have the power to amend or
repeal the Company Strategic Plans; provided that, prior to the Third AMS, any material changes to the Synergies Plan, or the provisions relating to:
(a) the SAP operating system, (b) the storage branch
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network,
(c) the Mobile Mini branch managers retaining P&L and (d) the Mobile Mini insider sales representative structure, each included in the Company Strategic Plans (such provisions
(a)-(d), the "Strategic Plan Provisions"), shall require Supermajority Approval (as defined in Section 3.1(c)). For the avoidance of doubt,
except as expressly provided in this Section 2.12, the implementation and execution of the Company Strategic Plans shall be conducted by the Corporation's management team with appropriate
oversight and supervision by the Board, from time to time.
Article 3
Committees
3.1 Committees.
(a) Subject
to Section 3.1(b) and Section 3.1(c), the Board of Directors may, by resolution passed by a majority of the Whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the Corporation (each, a "Committee"). The Board of Directors may designate one
or more directors as alternate members of any Committee, who may replace any absent or disqualified member at any meeting of the committee; provided
that, until the Third AMS, any alternate who replaces any absent or disqualified member on any Committee, including any Initial Committee (as defined below), must be a (x) WillScot Continuing
Director, if the absent or disqualified member is a WillScot Continuing Director or (y) Mobile Mini Continuing Director, if the absent or disqualified member is a Mobile Mini Continuing
Director. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law
and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed to all pages that may require it.
(b) The
Corporation shall have the following committees (the "Initial Committees") to serve at least until the Third AMS. The
Initial Committees shall have the powers and responsibilities set forth in the respective charter for each committee (as attached to the Agreement and Plan of Merger, dated as of March 1, 2020,
by and among WillScot, Mobile Mini and Picasso Merger Sub, Inc.) and shall be comprised of only the directors meeting the following qualifications:
(1) Audit Committee: two qualifying directors from each of the WillScot Continuing Directors and the Mobile Mini
Continuing Directors;
(2) Compensation Committee: two qualifying directors from each of the WillScot Continuing Directors and the
Mobile Mini Continuing Directors;
(3) Corporate Governance Committee: two qualifying directors from each of the WillScot Continuing Directors and
the Mobile Mini Continuing Directors; and
(4) Related Party Transactions Committee: subject to Section 3.1(d), three qualifying directors from each
of the WillScot Continuing Directors and the Mobile Mini Continuing Directors, excluding any director nominated or appointed by TDR or otherwise considered interested as it relates to TDR; provided that,
such committee shall be disbanded on the first date on which TDR and its affiliates, in the aggregate, beneficially own less than 5% of
the outstanding shares of the Corporation.
(c) Notwithstanding
anything to the contrary in Section 3.1(a), until the Third AMS (i) the designation or formation of any committee (other than
(x) the Initial Committees (including the Ad Hoc Committee, if applicable) and (y) a customary pricing Committee to approve pricing in capital
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markets
transactions (a "Customary Pricing Committee"), which shall require a resolution passed by a majority of the Whole Board) shall require a
resolution passed by at least eight directors ("Supermajority Approval") and (ii) all Committees (other than a Customary Pricing Committee) shall
consist of an equal number of directors from the WillScot Continuing Directors and the Mobile Mini Continuing Directors.
(d) Any
TDR Continuing Director may be appointed to the Customary Pricing Committee at any time after the date hereof. To the extent a TDR Continuing Director satisfies all
applicable independence requirements for any committee, including any Initial Committee, pursuant to applicable laws and regulations, such TDR Continuing Director may be appointed to such Committee by
the Board; provided that under no circumstances shall a TDR Continuing Director be entitled to be appointed to the Related Party Transactions Committee.
3.2 Committee Charters and Rules. Unless the Board of Directors or the charter of any such committee
otherwise provides, each committee designated by the Board of Directors may make, alter and
repeal rules for the conduct of its business; including such rules as may be contained in such committee's charter; provided that, prior to the Third AMS, making any change to the charter of any of
the Initial Committees shall require a resolution passed by Supermajority Approval. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors
conducts its business pursuant to Article 2 of these Bylaws. Each committee and subcommittee shall keep regular minutes of its meetings and report the same to the board of directors, or the
committee, when required.
Article 4
Officers
4.1 Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies.
The Board of Directors as of the date of these Bylaws shall appoint the following officers of the Corporation, to take office as of the date of these Bylaws: a Chief Executive Officer,
President & Chief Operating Officer, Chief Financial Officer and General Counsel. The Board of Directors or Chief Executive Officer or other duly appointed officer authorized by the Board of
Directors may also elect or appoint such other officers as it, he or she shall deem necessary or appropriate to the management and operation of the Corporation, including, without limitation, a Chief
Human Resources Officer, Chief Information Officer, Chief Administrative Officer, Chief Marketing Officer, and one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant
Secretaries, Controllers, Assistant Controllers, and such other officers as the Board of Directors or officer making the election or appointment deems necessary. Except as set forth in
Section 4.2(b) hereof, each such officer shall hold office for the term for which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified,
or until his or her death, or until he or she shall resign, or until he or she shall have been removed in the manner hereinafter provided. Any officer may resign at any time upon written or electronic
notice to the Corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. An officer that elects or appoints another officer may remove such officer with or without cause at any time, but such removal shall be without prejudice to the contractual
rights of such officer, if any, with the Corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the Corporation by death, resignation, removal, or
otherwise may be filled for the unexpired portion of the term at any regular or special meeting of the Board of Directors (or by any officer authorized to fill such vacancy).
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4.2 Powers and Duties of Executive Officers. (a) The officers of the Corporation
shall have such powers and duties in the management of the Corporation as may be prescribed by the Board of Directors, and to
the extent not so prescribed, they shall each have such powers and authority and perform such duties in the management of the property and affairs of the Corporation, subject to the control of the
Board of Directors, as generally pertain to their respective offices. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her
duties. Without limitation of the foregoing:
(1) Chief Executive Officer. The Chief Executive Officer shall be the principal executive officer of the
Corporation. Subject to the control of the Board of Directors, the Chief Executive Officer shall have general supervision over the business of the Corporation and shall have such other powers and
duties as chief executive officers of corporations usually have or as the Board of Directors may assign. The Chief Executive Officer shall maintain his or her primary office in Phoenix, Arizona.
(2) President & Chief Operating Officer. The President & Chief Operating Officer shall be the
chief operations officer of the Corporation. Subject to the control of the Board of Directors, the President &
Chief Operating Officer shall have general supervision over the business of the Corporation, to the extent not the responsibility of the Chief Executive Officer, and shall have such other powers and
duties as presidents of corporations usually have or as the Board of Directors may assign. The President & Chief Operating Officer shall maintain his or her primary office in Phoenix, Arizona.
(3) Chief Financial Officer. The Chief Financial Officer shall be the principal financial officer of the
Corporation and shall have custody of all funds and securities of the Corporation and shall sign all instruments and documents as require his or her signature. The Chief Financial Officer shall
undertake such other duties or responsibilities as the Board of Directors may assign. The Chief Financial Officer shall maintain his or her primary office in Phoenix, Arizona; provided, however, he or she may remain in Baltimore for a limited period of time following the date
hereof to ensure a smooth transition of duties and responsibilities., in accordance with the Company Strategic Plan.
(4) General Counsel. The General Counsel shall serve as the Corporation's primary in-house legal counsel and
shall have such other powers and duties as the Board of Directors or the Chief Executive Officer may assign. The General Counsel shall maintain his or her primary office in Phoenix, Arizona.
(5) Vice President. Each Vice President shall have such powers and duties as the Board of Directors or Chief
Executive Officer may assign.
(6) Secretary. The Secretary shall issue notices of all meetings of the stockholders and the Board of Directors
where notices of such meetings are required by law or these Bylaws and shall keep the minutes of such meetings. The Secretary shall sign such instruments and attest such documents as require his or
her signature of attestation and affix the corporate seal thereto where appropriate.
(b) As
of the date of these Bylaws, Bradley Soultz shall be the Chief Executive Officer, Kelly Williams shall be the President and Chief Operating Officer, Tim Boswell shall
be the Chief Financial Officer, Chris Miner shall be the General Counsel, until removed or replaced in accordance with Section 4.1 or Section 4.2(b)(1).
(1) Chief Executive Officer. Mr. Soultz shall serve as Chief Executive Officer of the Corporation for
24 months beginning on the date of effectiveness of these Bylaws (the "Initial CEO Term") unless he sooner resigns or is removed from office as
provided in these Bylaws. The Board of Directors, in its sole discretion, shall have the right to renew Mr. Soultz's appointment as
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Chief
Executive Officer in the manner hereinafter provided. To the extent the Board of Directors does not renew Mr. Soultz's appointment as Chief Executive Officer, Mr. Soultz will cease
to be the Chief Executive Officer of the Corporation at the end of the Initial CEO Term. Not more than 60 days prior to the end of the Initial CEO Term, if Mr. Soultz remains in office
as Chief Executive Officer at such time, the Board of Directors shall determine by the affirmative vote of a majority of the Whole Board, excluding Mr. Soultz, whether to renew
Mr. Soultz's appointment as Chief Executive Officer; provided that, if the vote of the Whole Board results in a deadlock, Mr. Soultz shall
continue as Chief Executive Officer after the end of the Initial CEO Term until he resigns or is removed from office as provided in these Bylaws.
4.3 Compensation. The salaries of the officers shall be fixed from time to time by the Board of
Directors. Nothing contained herein shall preclude any officer from serving the
Corporation in any other capacity, including that of director, or from serving any of its stockholders, subsidiaries or affiliated entities in any capacity and receiving proper compensation therefor.
4.4 Representation of Shares of Other Entities. Unless otherwise directed by the Board of Directors,
the Chief Executive Officer or any other person authorized by the Board of Directors or the Chief Executive
Officer is authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares or interests of any other entities standing in the name of the Corporation.
The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
Article 5
Stock
5.1 Certificates.
(a) The
shares of the Corporation shall be represented by certificates; provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. The shares of the common stock of the Corporation shall be registered on the books
of the Corporation in the order in which they shall be issued. Any certificates for shares of the common stock, and any other shares of capital stock of the Corporation represented by certificates,
shall be numbered and shall be signed by any two of the Chairman of the Board of Directors, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, or any other authorized officers of the Corporation. Any or all of the signatures on a certificate may be a facsimile signature. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he, she or it were such officer, transfer agent or registrar at the date of issue. Within a reasonable time after the issuance or transfer of uncertificated
stock, the Corporation shall send, or cause to be sent, to the record owner thereof a notice in writing or by electronic transmission setting forth the name of the Corporation, the name of the
stockholder, the number and class of shares and such other information as is required by law, including Section 151(f) of the DGCL. Any stock certificates issued and any notices given shall
include such other information and legends as shall be required by law or necessary to give effect to any applicable transfer, voting or similar restrictions.
(b) No
certificate representing shares of stock shall be issued until the full amount of consideration therefor has been paid, except as otherwise permitted by law.
5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may
issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or
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destroyed
certificate, or his or her legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft
or destruction of any such certificate or the issuance of such new certificate. If shares represented by a stock certificate alleged to have been lost, stolen or destroyed have become uncertificated
shares, the Corporation may, in lieu of issuing a new certificate, cause such shares to be reflected on its books as uncertificated shares and may require the owner of the lost, stolen or destroyed
certificate, or his or
her legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such
certificate.
5.3 Dividends. The Board of Directors, subject to any restrictions contained in the Certificate of
Incorporation or applicable law, may declare and pay dividends upon the shares
of the Corporation's capital stock. Dividends may be paid in cash, in property, or in shares of the Corporation's capital stock, subject to the provisions of the Certificate of Incorporation. The
Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall
include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
5.4 Transfer of Shares.
(a) Transfers
of shares shall be made upon the books of the Corporation (i) only by the holder of record thereof, or by a duly authorized agent, transferee or legal
representative and (ii) in the case of certificated shares, upon the surrender to the Corporation of the certificate or certificates for such shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record
the transaction upon its books.
(b) The
Corporation shall be entitled to treat the holder of record of any share or shares of stock as the absolute owner thereof for all purposes and, accordingly, shall
not be bound to recognize any legal, equitable or other claim to, or interest in, such share or shares of stock on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise expressly provided by law.
5.5 Transfer Agent; Registrar. The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and registrar and one or more co-registrars and may make, or authorize any
such agent to make, all such rules and regulations deemed expedient concerning the issue, transfer and registration of shares of stock of the Corporation.
Article 6
Indemnification of Officers and Directors
6.1 Right of Indemnification. The Corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law as it presently exists or may hereafter be amended, any
person (a "Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and
loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.5, the
corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if
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commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the Corporation.
6.2 Advancement of Expenses. The Corporation shall to the fullest extent not prohibited by applicable
law pay the expenses (including attorneys' fees) incurred by a Covered Person in
defending any proceeding in advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if
it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 6 or otherwise.
6.3 Claims. If a claim for indemnification under this Article 6 (following the final disposition
of such proceeding) is not paid in full within sixty days after the
Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Article 6 is not paid in full within thirty days after the Corporation
has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim.
If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation
shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
6.4 Non-Exclusivity of Rights. The rights conferred on any Covered Person by this Article 6
shall not be exclusive of any other rights which such Covered Person may have or hereafter
acquire under any statute, provision of the certificate of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
6.5 Other Sources. The Corporation's obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
6.6 Amendment or Repeal. Any right to indemnification or to advancement of expenses of any Covered
Person arising hereunder shall not be eliminated or impaired by an amendment to or
repeal of these Bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or
advancement of expenses is sought.
6.7 Other Indemnification and Advancement of Expenses. This Article 6 shall not limit the right
of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to
persons other than Covered Persons when and as authorized by appropriate corporate action.
Article 7
Miscellaneous
7.1 Execution of Corporate Contracts and Instruments. Subject to such limitations, restrictions, or
prohibitions as the Board of Directors or any officer may impose, the officers of the Corporation shall have power
or authority to bind the Corporation by any contract or engagement and to pledge its credit or to render it liable for any purpose or for any amount.
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7.2 Fiscal Year; Headquarters and Principal Executive Office.
(a) The
fiscal year of the Corporation shall be the calendar year, unless otherwise determined by resolution of the Board of Directors; provided that any such determination prior to the Third AMS shall require
Supermajority Approval.
(b) The
Corporation's headquarters and principal executive office shall be located in Phoenix, Arizona, unless otherwise determined by resolution of the Board of Directors; provided that any determination
relating to the location of the Corporation's headquarters and principal executive office prior to the Third AMS shall
require Supermajority Approval.
7.3 Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in
such form as may be approved from time to time by the Board of
Directors.
7.4 Notices.
(a) Notice to Directors. Whenever under applicable law, the Certificate of Incorporation, or these
Bylaws notice is required to be given to any director, such notice shall be given:
(1) in writing and sent by mail, hand delivery or by a nationally recognized delivery service; (2) by means of facsimile telecommunication or other form of electronic transmission; or
(3) by oral notice given personally or by telephone. A notice to a director will be deemed given and shall be timely as follows: (A) if given by hand delivery, orally, or by telephone,
when actually received by the director at least 24 hours before the time of the meeting; (B) if sent through the United States mail, after being deposited in the United States mail, with
postage and fees thereon prepaid, addressed to the director at the director's address appearing on the records of the Corporation at least four days prior to the meeting; (C) if sent for
delivery by a nationally recognized delivery service, if deposited for next day delivery with an overnight delivery service, with fees thereon prepaid, addressed to the director at the director's
address appearing on the records of the Corporation at least two days prior to the meeting; (D) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such
director appearing on the records of the Corporation at least 24 hours prior to the time of the meeting; (E) if sent by electronic mail, when sent to the electronic mail address for such
director appearing on the records of the Corporation at least 24 hours prior to the time of the meeting; or (F) if sent by any other form of electronic transmission, when sent to the
address, location or number (as applicable) for such director appearing on the records of the Corporation at least 24 hours prior to the time of the meeting.
(b) Notice to Stockholders. Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the Corporation under any
provision of the DGCL, the Certificate of Incorporation or these Bylaws may be given in writing directed to the stockholder's mailing address (or by electronic transmission directed to the
stockholder's electronic mail address, as applicable) as it appears on the records of the Corporation. Notice shall be given (i) if mailed, when deposited in the United States mail, postage
prepaid, (ii) if delivered by courier service, the earlier of when the notice is received or left at the stockholder's address, or (iii) if given by electronic mail, when directed to
such stockholder's electronic mail address (unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such
notice is prohibited by the DGCL to be given by electronic transmission). A notice by electronic mail must include a prominent legend that the communication is an important notice regarding the
Corporation. A notice by electronic mail will include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or
agent of the corporation who is available to assist with accessing such files or information. Any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of
Incorporation or these Bylaws provided by means of electronic transmission (other than any such notice given by electronic mail) may only be given in a form consented to by such stockholder, and any
such notice by such means of electronic transmission shall be deemed to be given as provided by the DGCL.
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(c) Electronic Transmission. "Electronic transmission"
means any form of communication, not directly involving the physical transmission of
paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed networks or databases), that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex,
facsimile telecommunication, electronic mail, telegram and cablegram.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice
otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the
Corporation under any provision of the DGCL, the Certificate of Incorporation, or these Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented
to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder's consent by delivering written notice of such revocation to the Corporation. Any
stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall
be deemed to have consented to receiving such single written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under the DGCL, the
Certificate of Incorporation or these Bylaws, to any person with whom communication is unlawful, the
giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any
action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the
event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice
is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever
notice is required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any stockholder to whom: (1) notice of two
consecutive annual meetings of stockholders and all notices of stockholders' meetings during the period between such two consecutive annual meetings; or (2) all, and at least two, payments (if
sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder's address as shown on the records of the
Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such
stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder's then
current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate
with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL.
The exception in Section 7.4(e)(1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any
notice returned as undeliverable if the notice was given by electronic transmission.
7.5 Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever any notice is
required to be given under applicable law, the Certificate of Incorporation, or these Bylaws, a written waiver of such notice, signed
before or after the date of such meeting by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to
such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for
the express purpose of objecting at the beginning of the meeting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
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7.6 Interested Directors; Quorum. No contract or transaction between the Corporation and one or more
of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if: (a) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of disinterested
directors, even though the disinterested directors be less than a quorum; (b) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the stockholders. All directors, including interested directors, may
be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.
7.7 Form of Records. Any records administered by or on behalf of the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute books,
may be kept on, or by means of, or be in the form of, any information storage device, method, or one or more electronic networks or databases (including one or more distributed electronic networks or
databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall convert any records so kept into clearly legible paper
form upon the request of any person entitled to inspect such records pursuant to any provision of the DGCL. When records are kept in such manner, a clearly legible paper form prepared from or by means
of the information storage device, method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases) shall be valid and admissible in
evidence, and accepted for all other purposes, to the same extent as an original paper record of the same information would have been, provided the paper form accurately portrays the record.
7.8 Amendments.
(a) The
Board of Directors shall have the power to amend, supplement or repeal these Bylaws of, or adopt new bylaws for, the Corporation; provided that: (i) prior to
the first annual meeting of stockholders following the Effective Time, amending, supplementing or repealing any provision of these Bylaws shall require a resolution passed by Supermajority Approval
and (ii) thereafter (A) until the Second AMS, amending, supplementing or repealing (or adopting any bylaw that is directly or indirectly inconsistent with) any provision of
Section 2.4 of these Bylaws shall require a resolution passed by Supermajority Approval and (B) until the Third AMS, amending, supplementing or repealing (or adopting any bylaw that is
directly or indirectly inconsistent with) any provision of Section 1.3, Section 1.11, Section 2.1, Section 2.2, the definition of "Whole
Board" as set forth in Section 2.4, Section 2.6, Section 2.7, Section 2.9(c), Section 2.11, Section 2.12, Section 3.1, the
first sentence of Section 3.2, Section 4.1, Section 4.2(a), Section 4.2(b), Section 7.2, Section 7.4(a) or Section 7.8 of these Bylaws shall require a
resolution passed by Supermajority Approval. Any such bylaws, or any alternation, amendment, supplement or repeal of these Bylaws, may be subsequently amended, supplemented or repealed by the
stockholders as provided in the Certificate of Incorporation.
(b) Amending,
supplementing or repealing any provision of the Certificate of Incorporation prior to the first annual meeting of stockholders following the Effective Time
shall require a resolution of the Board of Directors passed by Supermajority Approval. Amending, supplementing or repealing (or adopting any provision that is directly or indirectly inconsistent with)
Articles V, VI, VII, XI or XII of the Certificate of Incorporation prior to the Third AMS shall require a resolution of the Board of Directors passed by Supermajority Approval.
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Annex D
SHAREHOLDERS AGREEMENT
dated as of
[ · ], 2020
among
SAPPHIRE HOLDING S.À.R.L.,
TDR CAPITAL II HOLDINGS L.P.,
TDR CAPITAL LLP,
and
[COMBINED CORPORATION]
Table of Contents
TABLE OF CONTENTS
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ARTICLE I.
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DEFINITIONS
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D-1
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Section 1.01 Definitions.
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D-1
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ARTICLE II.
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CONFIDENTIALITY; BOARD DESIGNATION; STANDSTILL
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D-4
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Section 2.01 Confidentiality.
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D-4
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Section 2.02 Board Designation.
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D-5
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Section 2.03 Standstill Restrictions.
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D-6
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ARTICLE III.
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RESTRICTIONS ON TRANSFER
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D-7
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Section 3.01 General Restrictions on Transfer.
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ARTICLE IV.
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OTHER AGREEMENTS
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D-9
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Section 4.01 Termination of Original Agreement.
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D-9
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ARTICLE V.
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REPRESENTATIONS AND WARRANTIES
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D-9
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Section 5.01 Shareholder Representations and Warranties.
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ARTICLE VI.
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TERM AND TERMINATION
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D-10
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Section 6.01 Termination.
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Section 6.02 Effect of Termination.
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D-10
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ARTICLE VII.
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MISCELLANEOUS
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D-10
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Section 7.01 Expenses.
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D-10
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Section 7.02 Notices.
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D-10
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Section 7.03 Interpretation.
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Section 7.04 Severability.
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Section 7.05 Entire Agreement.
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Section 7.06 Amendment and Modification; Waiver.
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Section 7.07 Successors and Assigns.
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Section 7.08 No Third-Party Beneficiaries.
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Section 7.09 Governing Law; Jurisdiction.
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Section 7.10 Equitable Remedies.
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Section 7.11 Counterparts.
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Section 7.12 Waiver of Jury Trial.
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Section 7.13 Actions by the Company.
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Section 7.14 Section 16 Matters.
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Section 7.15 Trading Restriction Periods.
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SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "Agreement"),
dated as of [ · ], 2020, is entered into by and among [Combined
Corporation], a Delaware corporation (the "Company"), Sapphire Holding S.à.r.l.
("Holdings"), TDR Capital II Holdings L.P. ("Parent") and TDR Capital LLP, in its
capacity as manager of Parent ("Manager", together with Holdings, Parent and each Person that has executed and delivered to the Company a joinder to
this Agreement in accordance with Section 3.01(d), the "Shareholders").
WHEREAS, the Company and Holdings desire to terminate that certain Shareholders Agreement, dated as of November 29, 2017 (the
"Original Shareholders Agreement"), by and among Williams Scotsman Holdings Corp., the Company, Holdings, Algeco Scotsman Global
S.à.r.l., Algeco Scotsman Holdings Kft., and solely for the purposes of Section 2.01 thereof, Double Eagle Acquisition LLC and Harry E. Sloan pursuant to the terms
thereof;
WHEREAS, the Company, Mobile Mini, Inc., a Delaware corporation ("Mobile Mini"),
and Picasso Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of the Company ("Merger Sub"), have entered into that certain
Agreement and Plan of Merger dated as of March 1, 2020 providing for the merger of Merger Sub with and into Mobile Mini (the "Merger Agreement");
and
WHEREAS, the Shareholders and the Company deem it in their best interests and in the best interests of the Company to enter into this
Agreement to set forth their respective rights, duties and obligations in connection with the consummation of the merger contemplated by the Merger Agreement and Holdings' investment in the Company.
NOW, THEREFORE, for good and valuable consideration the sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.
Capitalized
terms used herein and not otherwise defined shall have the meaning set forth in this Article I.
"15% Condition" has the meaning set forth in Section 2.02(a).
"5% Condition" has the meaning set forth in Section 2.02(a).
"Affiliate" means, with respect to any Person, any other Person that, at the time of determination, directly or indirectly, whether
through one or more intermediaries or otherwise, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), when used with respect to any specified Person, shall
mean the power, direct or indirect,
to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Applicable Law" means all applicable provisions of constitutions, treaties, statutes, laws (including the common law), rules,
regulations, decrees, ordinances, codes, proclamations, declarations, orders, writs, judgments, awards, injunctions or rulings of any Governmental Authority.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York, London or Phoenix,
Arizona are authorized or required by law to close.
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"Bylaws" means the bylaws of the Company adopted on November 14, 2019, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the terms of this Agreement or as contemplated in the Merger Agreement.
"Certificate of Incorporation" means the certificate of incorporation of the Company, as filed on November 29, 2017 with the
Secretary of the State of Delaware and as the same may be amended, modified, supplemented or restated from time to time (including as contemplated in the Merger Agreement).
"Change of Control" means any transaction or series of related transactions (as a result of a tender offer, merger, consolidation or
otherwise) that (a) results in or is in connection with any Third Party Purchaser or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of Third Party Purchasers
acquiring beneficial ownership, directly or indirectly, of a majority of the then issued and outstanding Common Stock, (b) results in or is in connection with the sale, lease, exchange,
conveyance,
transfer or other disposition (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Company and its Subsidiaries (if any), on a
consolidated basis, to any Third Party Purchaser or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of Third Party Purchasers (including any liquidation, dissolution or
winding up of the affairs of the Company, or any other distribution made, in connection therewith), or (c) results in the then-current holders of Common Stock collectively owning less than a
majority of the voting power of the surviving entity immediately following consummation thereof.
"Common Stock" means the Class A common stock, par value $0.0001 per share, of the Company and any voting securities issued in
respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, or internal reorganization in the form of merger,
consolidation or exchange, or similar transaction.
"Company" has the meaning set forth in the preamble.
"Competitively Sensitive Information" means Confidential Information designated by the general counsel of the Company that is
competitively sensitive with respect to the applicable recipient in the reasonable discretion of the general counsel of the Company, including without limitation, such Confidential Information with
respect to profit margins, product and brand costs and profit and loss information, price lists, customer and supplier lists and other customer and supplier specific information, customer contracts,
purchase orders, statements of work, plans to increase or reduce production outside of the ordinary course, plans to enter or leave product or geographic markets or similar information, new products
plans, purchasing patterns and pricing, supply arrangements, strategic alliances, promotional plans and advertising plans, to the extent that such information is not aggregated, redacted, anonymized
or otherwise desensitized. For the avoidance of doubt, information regarding the overall financial performance of the Company or aggregated information that does not include any specific information
on any of the matters set forth above shall not be deemed to be Competitively Sensitive Information.
"Confidential Information" means all confidential and proprietary information and data of the Company or any of its Subsidiaries disclosed
or otherwise made available to any Shareholder or any Representative (in such Person's capacity as such) thereof (together, for this purpose, a
"Recipient") pursuant to the terms of this Agreement, whether disclosed electronically, orally or in writing or through other methods made available to
the Recipient. Notwithstanding the foregoing, for purposes of this Agreement, Confidential Information will not include any information (a) already in the public domain at the date of the
transmission, or which has become generally available to the public other than as a result of a disclosure by the Recipient in breach of this Agreement, (b) in the Recipient's possession and
which is not, or was not at the time of acquisition of possession, to the Recipient's actual knowledge, covered by any confidentiality agreements between the Recipient, on the one hand, and the
Company or any of its Subsidiaries, on the other hand, (c) which the Recipient may receive on
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a
non-confidential basis from a third party and which is not, to the Recipient's actual knowledge, covered by a confidentiality agreement with the Company or any of its respective Subsidiaries or
(d) that was provided prior to the date hereof and is subject to the Confidentiality Agreement.
"Confidentiality Agreement" means that certain Mutual Confidentiality Agreement, dated as of April 30, 2019 and amended as of
January 7, 2020, by and among the Company, Mobile Mini and Manager.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Government Approval" means any authorization, consent, approval, waiver, exception, variance, order, exemption, publication, filing,
declaration, concession, grant, franchise, agreement, permission, permit, or license of, from or with any Governmental Authority, the giving notice to, or registration with, any Governmental Authority
or any other action in respect of any Governmental Authority.
"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or
instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi- governmental authority (to the extent that the
rules, regulations or orders of such organization or authority have the force of Applicable Law), or any arbitrator, court or tribunal of competent jurisdiction.
"Holdings" has the meaning set forth in the preamble.
"Holdings Board Member" has the meaning set forth in Section 2.02(a).
"Joinder Agreement" means the joinder agreement in form and substance of Exhibit A
attached hereto.
"Lock-up Period" has the meaning set forth in Section 3.01(a).
"Manager" has the meaning set forth in the preamble.
"Merger Agreement" has the meaning set forth in the preamble.
"Organizational Documents" means the Bylaws and the Certificate of Incorporation.
"Overlapping Business" means any Person that offers products or services that directly compete with products or services offered by the
Company in the same geographic area ("Competing Products"), which Competing Products generate annual revenue that is at least 15% of the consolidated
annual revenue of the Company.
"Parent" has the meaning set forth in the preamble.
"Permitted Transferee" means, with respect to any Shareholder, an Affiliate of such Shareholder, a general partner or manager of such
Shareholder or any of its Affiliates (excluding any other portfolio company thereof), any fund which has the same general partner or manager as such Shareholder or any of their Affiliates, any fund in
respect of which such Shareholder or one of its/their Affiliates is a general partner or manager, including, with respect to Holdings, without limitation TDR Capital Nominees Limited.
"Person" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
"Representative" means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel,
accountants and other agents of such Person.
"SEC" has the meaning set forth in Section 2.03(c).
"Securities Act" means the Securities Act of 1933, as amended.
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"Shareholders" has the meaning set forth in the preamble.
"Subsidiary" means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
"Third Party Purchaser" means any Person who, immediately prior to the contemplated transaction, (a) does not directly or
indirectly own or have the right to acquire any outstanding Common Stock or (b) is not a Permitted Transferee of any Person who directly or indirectly owns or has the right to acquire any
Common Stock.
"Transfer" means to, directly or indirectly, offer, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either
voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar
disposition of, any Common Stock owned by a Person or any interest (including a beneficial interest) in any Common Stock owned by a Person, including establishing or increasing a put equivalent
position, or liquidating or decreasing a call equivalent position within the meaning of Section 16 of the 1934 Act with respect to, any shares of Common Stock beneficially owned by such
Shareholder.
ARTICLE II.
CONFIDENTIALITY; BOARD DESIGNATION; STANDSTILL
Section 2.01 Confidentiality.
-
(a)
-
Each
Shareholder will, and will cause its Representatives to, (i) keep confidential all Confidential Information received by it from the Company or any of its
Subsidiaries or controlled Affiliates and not disclose or reveal any such information to any Person without the prior written consent of the Company, other than to such Shareholder's Representatives
whom such Shareholder determines in good faith need to know such information for the purpose of evaluating, monitoring or taking any other action with respect to the investment by such Shareholder in
the Company, and (ii) use its reasonable best efforts to cause its Representatives to observe the terms of this Section 2.01 as if they were parties to this Agreement; provided, however, that nothing herein will prevent any Shareholder from disclosing any information that
is required to be disclosed by Applicable Law so long as, prior to such disclosure, such Shareholder, unless prohibited by Applicable Law, uses its reasonable efforts to notify the Company of any such
disclosure, uses reasonable efforts (at the Company's sole expense) to limit the disclosure to only those portions that are required to be disclosed under such Applicable Law and maintains the
confidentiality of such other information to the maximum extent permitted by Applicable Law.
-
(b)
-
In
furtherance and not in limitation of the foregoing, each Holdings Board Member shall be permitted to share Confidential Information with Holdings, Parent and
Manager and any of each of Holdings', Parent's and Manger's Representatives or Permitted Transferees; provided that, under no circumstances shall any
Holdings Board Member or any of Holdings, Parent, Manager or any of their respective Representatives or Permitted Transferees be permitted to share Confidential Information with (i) any
portfolio company of Parent or any portfolio company of any of Parent's Affiliates or (ii) any Person who holds a management position in a portfolio company of Parent or a portfolio company of
any of Parent's Affiliates that is an Overlapping Business. Parent agrees on behalf of itself and its Affiliates that any Person who receives Competitively Sensitive Information pursuant to this
Agreement will not, until the date that is 9 months following the latest time at which any such Person received such Competitively Sensitive Information, hold a management position in an
Overlapping Business.
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(c)
-
With
respect to Parent, Holdings, Manager and their respective Representatives, including each Holdings Board Member, the restrictions set forth in this
Section 2.01 shall survive until the date that is two years after the date on which the 5% Condition is no longer satisfied.
-
(d)
-
Notwithstanding
anything to the contrary in the foregoing, the parties acknowledge that each Shareholder and its Affiliates, partners, officers and employees may
serve as directors (or in similar roles) of portfolio companies of Parent or its Affiliates ("Dual Role Persons"), and such Shareholder shall not be
deemed to be in breach of its obligations in this Section 2.01, and any such portfolio company will not be deemed to have received Confidential Information, solely due to the dual role of any
such Dual Role Person so long as such Dual Role Person does not (i) provide or otherwise communicate any Confidential Information to such portfolio company or the directors, officers,
employees, consultants or advisors of any such portfolio company, other than another Dual Role Person, (ii) direct or encourage such portfolio company to act with respect to any Confidential
Information or (iii) use such Confidential Information other than in connection with evaluating, monitoring or taking any other action with respect to the investment by such Shareholder in the
Company; provided that no officer or employee of any Shareholder or any of its Affiliates who has received any Competitively Sensitive Information may
serve as director (or in similar role) of any portfolio company of Parent or any of its Affiliates that is an Overlapping Business for as long as such information received remains Competitively
Sensitive Information. For purposes of this Section 2.01(d), the Company shall, upon request of Parent, use reasonable efforts to aggregate, anonymize, redact or otherwise desensitize
Confidential Information to the extent practicable such that it no longer constitutes Competitively Sensitive Information.
-
(e)
-
Notwithstanding
anything to the contrary provided herein, any partner, officer or employee of any Shareholder or any of their respective Affiliates may serve as a
director (or in similar role) of a portfolio company of any Shareholder or any of its Affiliates that is an Overlapping Business (provided that, for purposes of this Section 2.01(e), the
reference to "is at least 15%" in the definition of Overlapping Business shall be deemed to be a reference to "represents any"), and serve as a Holdings Board Member; provided that, in such
circumstances, the Company shall have the right, in the reasonable discretion of the general counsel of the Company, to deny any
such Holdings Board Member access to any Competitively Sensitive Information. For purposes of this Section 2.01(e), the Company shall, upon request of Parent, use reasonable efforts to
aggregate, anonymize, redact or otherwise desensitize Confidential Information to the extent practicable such that it no longer constitutes Competitively Sensitive Information.
-
(f)
-
Nothing
in this Section 2.01 shall prohibit any Shareholder or any of its Affiliates from acquiring or owning securities or other investments in any
Overlapping Business.
Section 2.02 Board Designation.
-
(a)
-
From
and after the date hereof, (i) for so long as Holdings, together with its Permitted Transferees, beneficially owns at least 15% of the outstanding shares
of Common Stock (the "15% Condition"), Holdings shall have the right to require the Company to nominate, and use its best efforts to have elected to the
Board at any annual or special meeting of the Company's stockholders, two individuals designated by Holdings and who satisfy the director qualification criteria set forth in the charter of the
Nominating and Corporate Governance Committee of the Company (each, a "Holdings Board Member"), (ii) for so long as Holdings, together with its
Permitted Transferees, beneficially owns at least 5% but less than 15% of the outstanding shares of Common Stock (the "5% Condition"), Holdings shall
have the right to require the Company to nominate, and use its best efforts to have elected to the Board at any annual or special meeting of the Company's stockholders, one Holdings Board Member. The
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initial
Holdings Board Members shall be Gary Lindsay and Stephen Robertson. If neither the 15% Condition nor the 5% Condition is satisfied, Holdings shall not have the right to designate a Holdings
Board Member to the Board. Upon being appointed as a Holdings Board Member, such Holdings Board Member shall execute a resignation letter, tendering his or her resignation from the Board, effective
upon the 15% Condition or the 5% Condition, as applicable, no longer being satisfied; provided, that if Holdings no longer has the right to designate a
Holdings Board Member because the 15% Condition is no longer satisfied, Holdings shall be entitled to designate which Holdings Board Member shall resign.
-
(b)
-
If,
as a result of death, disability, retirement, resignation, removal (with or without cause) or otherwise, there shall exist or occur any vacancy on the Board with
respect to a Holdings Board Member, (i) Holdings may designate another individual who satisfies the director qualification criteria set forth in the charter of the Nominating and Corporate
Governance Committee of the Company (the "Replacement Nominee") to fill such vacancy and serve as a Holdings Board Member and (ii) the Company
will cause the Board to promptly appoint the Replacement Nominee to the Board.
Section 2.03 Standstill Restrictions. From the date of this Agreement and until the date on which Parent
ceases to beneficially own a number of shares of Common Stock that constitutes less than 5% of the outstanding Common Stock (the "Standstill Period"),
Holdings shall not, and shall cause all of its respective Subsidiaries and Affiliates not to, directly or indirectly through another Person, unless expressly invited in a writing with the approval of
the Board (provided, that the Holding Board Members shall not participate in such decision).
-
(a)
-
acquire,
agree to acquire, propose, seek or offer to acquire or announce the intention to acquire, or knowingly facilitate the acquisition or ownership of (whether
publicly or otherwise and whether or not subject to conditions) any equity securities, loans, debt securities or assets of the Company or any of its Subsidiaries, or any warrant, option or other
direct or indirect right to acquire any such securities, loans or assets;
-
(b)
-
enter
into, agree to enter into, propose, or seek or offer to enter into or knowingly facilitate any merger, business combination, recapitalization, restructuring or
other extraordinary transaction (including a Change of Control) involving the Company or any of its Subsidiaries;
-
(c)
-
initiate,
knowingly encourage, make, or in any way participate or engage in, any "solicitation" of "proxies" as such terms are used in the proxy rules of the U.S.
Securities and Exchange Commission (the "SEC") to vote, or seek to advise or influence any person (other than any Permitted Transferees) with respect to
the voting of, any voting securities of the Company (including, for the avoidance of doubt, indirectly by means of communication with the press or media), in each case, other than in a manner in
accordance with the recommendation of the Board;
-
(d)
-
file
with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its shareholders that would be required
to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act;
-
(e)
-
nominate
or recommend for nomination a person for election at any shareholder meeting of the Company at which directors of the Board are to be elected, other than
pursuant to Section 2.02;
-
(f)
-
submit
any shareholder proposal for consideration at, or bring any other business before, any shareholder meeting of the Company;
-
(g)
-
initiate,
knowingly encourage, or actively participate or engage in, any "withhold" campaign with respect to any shareholder meeting of the Company;
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(h)
-
form,
join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the
Company, other than with the Permitted Transferees;
-
(i)
-
call,
request the calling of, or otherwise seek or assist in the calling of a special meeting of the Shareholders;
-
(j)
-
otherwise
act, alone or in concert with others, to seek to control the management of the Company;
-
(k)
-
disclose
any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; or
-
(l)
-
advise,
assist or knowingly encourage or enter into any negotiations, agreements or arrangements with any other persons (other than any Permitted Transferees) in
connection with the foregoing (provided, that this paragraph (l) shall not restrict a Shareholder's ability to Transfer its Common Stock in
accordance with Section 3.01);
provided that the foregoing limitations will (i) in no way limit the activities of any Person appointed to the Board pursuant to the terms of the
Merger Agreement or this Agreement taken in his or her capacity as a director of the Company, (ii) not preclude the exercise of any rights received as a dividend or other distribution in a
rights offering or other issuance in respect of any Common Stock beneficially owned by Holdings, (iii) not require Holdings or any of its Affiliates to vote its Common Stock with respect to any
matter in any given manner or at all and not restrict Holdings or any of its Affiliates from publicly stating how it intends to vote on any particular matter and (iv) not limit Holdings or its
Affiliates from participating in any auction process initiated by the Company or any of its Subsidiaries with respect to its assets in which the Company has invited in writing Holdings or any of its
Affiliates to participate. Holdings further agrees that during the Standstill Period it will not (and will ensure that its controlled Affiliates and any person acting on behalf of or in concert with
it or any of its controlled
Affiliates will not), directly or indirectly (x) make any request directly or indirectly, to amend or waive any provision of this Section 2.03 (including this sentence), or
(y) take any action (except as expressly permitted herein) that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business
combination, merger or other extraordinary transaction described in this Section 2.03 with it or any of its controlled Affiliates. Notwithstanding anything to the contrary contained in this
Agreement, the provisions of Section 2.03 shall be inoperative and of no force or effect if (A) the Company enters into a definitive agreement providing for a Change of Control (solely
for the purposes of this sentence, whether or not such Change of Control is with a Third Party Purchaser) or (B) the Board fails to publicly recommend against any tender or exchange offer for
Common Stock commenced by another Person within ten business days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act.
ARTICLE III.
RESTRICTIONS ON TRANSFER
Section 3.01 General Restrictions on Transfer.
-
(a)
-
Except
as permitted by Section 3.01(b), Holdings will not, and will cause each of its Permitted Transferees not to, from the date hereof until the six month
anniversary of the date hereof (the "Lock-up Period"), Transfer any of the Common Stock that it beneficially owns; provided that such restriction may be
waived or amended by (x) the Related Party Transactions Committee of the Board, or (y) if such
committee is no longer in existence, the Board. Following the expiration of the Lock-up Period, Holdings and each of its Permitted Transferees may Transfer any Common Stock held by Holdings; provided
that Holdings shall not, and shall cause each of its Permitted Transferees not to, Transfer (i) more than 50% of
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the
Common Stock held by Holdings as of the date of this Agreement during the one year period following the Lock-up Period, (ii) Common Stock to any "person" or "group" (in each case within the
meaning of Section 13(d) of the 1934 Act), in a single transaction or series of related transactions, if such "person" or "group" beneficially owns more than 5.0% of the then-outstanding shares
of Common Stock or would hold, as a result of such transfer, more than 5.0% of the then-outstanding shares of Common Stock or (iii) until such time that Holdings, together with its Permitted
Transferees, beneficially owns less than 5% of the then-outstanding shares of Common Stock, Common Stock constituting more than 2.5% of the then-outstanding Common Stock in any 90-day period in an
open market sale or block trade, unless through a marketed offering or a privately negotiated sale so long as any such privately negotiated sale is to the ultimate investor and not an intermediary; provided, further, that the foregoing requirements may be waived or amended by (x) the Related
Party Transactions Committee of the Board, or (y) if such committee is no longer in existence, the Board (provided, that the Holdings Board
Members shall not participate in such decision). Without limiting the foregoing, Holdings shall comply with the Securities Trading Policy of the Company with respect to each Transfer of Common Stock.
-
(b)
-
The
provisions of Section 3.01(a) shall not apply to any Transfer by Holdings or its Permitted Transferees (i) of all (or a portion of) of its Common
Stock to a Permitted Transferee, (ii) pursuant to a merger, stock sale, consolidation or other business combination of the Company with a Person that is unaffiliated with the Shareholders or
(iii) solely in connection with the pledging of any Common Stock or any exercise of lender's rights or remedies, including without limitation any subsequent Transfer by such lender, pursuant to
any loan agreement with a bona fide financial institution. For the avoidance of doubt, any exercise of any lender's rights and/or remedies under any
such loan agreement and any transfer following any exercise of such remedies shall not be limited or restricted by any provision of this Agreement.
-
(c)
-
In
addition to any legends required by Applicable Law, each certificate (if any) representing the Common Stock of the Company held by the Shareholders shall bear a
legend substantially in the following form:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDERS AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH SHAREHOLDERS AGREEMENT."
-
(d)
-
Prior
notice shall be given to the Company by the transferor of any Transfer permitted by this Section 3.01 (whether or not to a Permitted Transferee) of any
Common Stock at least three Business Days prior to the date of any such Transfer. Prior to or concurrently with the consummation of any Transfer to a Permitted Transferee, Holdings shall cause the
transferee to execute and deliver to the Company a Joinder Agreement and agree to be bound by the terms and conditions of this Agreement. Upon any Transfer by Holdings of any of its Common Stock to a
Permitted Transferee, in accordance with the terms of this Agreement, the transferee thereof shall be substituted for, and shall assume all the rights and obligations under this Agreement of, the
transferor thereof.
-
(e)
-
Notwithstanding
any other provision of this Agreement, each Shareholder agrees that it will not, directly or indirectly, Transfer any of its Common Stock
(i) except as permitted under the Securities Act and other applicable federal or state securities laws, (ii) if it would cause the
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Company
or any of its Subsidiaries to be required to register as an investment company under the Investment Company Act of 1940, as amended, or (iii) if it would cause the assets of the Company
or any of its Subsidiaries to be deemed plan assets as defined under the Employee Retirement Income Security Act of 1974, as amended, or its accompanying regulations or result in any "prohibited
transaction" thereunder involving the Company.
-
(f)
-
Any
attempt to Transfer any Common Stock that is not in compliance with this Agreement shall be null and void, and the Company shall not, and shall cause any
transfer agent not to, give any effect in the Company's stock records to such attempted Transfer and the purported transferee in any such Transfer shall not be treated as the owner of such Common
Stock for any purposes of this Agreement.
ARTICLE IV.
OTHER AGREEMENTS
Section 4.01 Termination of Original Agreement. Pursuant to Section 7.01 of the Original
Shareholders Agreement, Holdings and the Company hereby agree to terminate the Original Shareholders Agreement in its entirety effective as of the date hereof.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01 Shareholder Representations and Warranties. Each Shareholder represents and warrants to the
Company and each other Shareholder that:
-
(a)
-
Such
Shareholder is an entity duly organized and validly existing and in good standing (or the equivalent thereof) under the laws of the jurisdiction of organization
and has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
-
(b)
-
The
execution and delivery of this Agreement, the performance by such Shareholder of its obligations hereunder and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite corporate or other company action of such Shareholder. Such Shareholder has duly executed and delivered this Agreement.
-
(c)
-
This
Agreement constitutes the legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby,
require no action by or in respect of, or filing with, any Governmental Authority (other than the filing of any required reports with the SEC).
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(d)
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The
execution, delivery and performance by such Shareholder of this Agreement and the consummation of the transactions contemplated hereby do not (i) conflict
with or result in any violation or breach of any provision of any of the organizational documents of such Shareholder, (ii) conflict with or result in any violation or breach of any provision
of any Applicable Law or (iii) require any consent or other action by any Person under any provision of any material agreement or other instrument to which such Shareholder is a party.
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(e)
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Except
for this Agreement, the Amended and Restated Registration Rights Agreement, dated as of November 29, 2017, by and among the Company, Holdings and
certain other parties, and the Margin Loan Agreement, dated as of August 22, 2018, among Holdings, the lenders
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party
thereto and Barclays Bank plc (as administrative agent and calculation agent) and the accompanying Pledge and Security Agreement, to the extent applicable, such Shareholder is not bound
by any other agreements or arrangements of any kind with any other party with respect to the Common Stock, including agreements or arrangements with respect to the acquisition or disposition of the
Common Stock or any interest therein or the voting of the Common Stock (regardless of whether or not such agreements and arrangements are with the Company or any other Shareholder).
ARTICLE VI.
TERM AND TERMINATION
Section 6.01 Termination.
This
Agreement shall terminate upon the earliest of: (a) the date on which neither Holdings nor any of its Permitted Transferee(s) beneficially owns at least 5% of the then
outstanding Common Stock; provided that, Section 2.01 shall survive for the duration specified therein; (b) the dissolution, liquidation, or
winding up of the Company; or (c) upon the written agreement of the Company and Holdings.
Section 6.02 Effect of Termination.
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(a)
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The
termination of this Agreement shall terminate all further rights and obligations of the Shareholders under this Agreement except that such termination shall not
effect: (i) the existence of the Company; (ii) the obligation of any party to pay any amounts arising on or prior to the date of termination, or as a result of or in connection with such
termination; (iii) the rights which any Shareholder may have by operation of law as a Shareholder; or (iv) the rights contained herein which are intended to survive termination of this
Agreement.
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(b)
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The
following provisions shall survive the termination of this Agreement: this Section 6.02 and Section 7.02, Section 7.09, Section 7.10
and Section 7.12.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Expenses.
Except
as otherwise expressly provided herein, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
Section 7.02 Notices.
All
notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand
(with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by facsimile or
email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such
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communications
must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this
Section 7.02):
if
to Holdings, Parent or Manager:
Sapphire
Holding S.à.r.l.
20, rue Eugene Ruppert
Luxembourg, L-2453 Luxembourg
Attention: Directors
Email: tdrlux@tdrcapital.com
notifications@tdrcapital.com
with
a copy to (which shall not constitute notice):
Kirkland &
Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: David M. Klein, P.C., Eric Schiele, P.C.
E-mail: dklein@kirkland.com, eric.schiele@kirkland.com
if
to the Company to:
[Combined
Corporation]
901 S. Bond Street, #600
Baltimore, MD 21231
Attention: Tim Lopez
E-mail: hezron.lopez@willscot.com
with
a copy to (which shall not constitute notice):
Allen &
Overy LLP
1221 Avenue of the Americas
New York, NY 10020
Attention: William Schwitter
Facsimile: (212) 610-6399
E-mail: william.schwitter@allenovery.com
Section 7.03 Interpretation.
For
purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is
not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall
apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. Unless the
context otherwise requires, references herein: (x) to Articles, Sections, and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement,
instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and
(z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed
without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein
shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
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Section 7.04 Severability.
If
any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent possible.
Section 7.05 Entire Agreement.
This
Agreement and the Organizational Documents constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersede all
prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Section 7.06 Amendment and Modification; Waiver.
This
Agreement may only be amended, modified or supplemented by an agreement in writing signed by the Company and Holdings. No waiver by any party of any of the provisions hereof shall
be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default
not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any
right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 7.07 Successors and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, to the extent permitted under Article III
hereof.
Section 7.08 No Third-Party Beneficiaries.
This
Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or
entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.09 Governing Law; Jurisdiction.
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(a)
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This
Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of
law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
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(b)
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Each
of the parties agrees that it shall bring any action or proceeding in respect of any claim arising under or relating to this Agreement or the transactions
contemplated by this Agreement exclusively in the Court of Chancery of the State of Delaware (or if such court declines to accept jurisdiction over a particular matter, any state or Federal court
located within the State of Delaware) (the "Chosen Courts") and, solely in connection with such claims, (a) irrevocably submits to the exclusive
jurisdiction of the Chosen Courts, (b) waives any objection to the laying of venue in any such action or proceeding in the Chosen Courts, (c) waives any objection that the Chosen Courts
are an inconvenient forum or do not have jurisdiction over any party and (d) agrees that mailing of process or other papers in
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connection
with any such action or proceeding in the manner provided in Section 7.02 or in such other manner as may be permitted by Law shall be valid and sufficient service thereof. The
consent to jurisdiction set forth in this Section 7.09 shall not constitute a general consent to service of process in the State of Delaware and shall have no effect for any purpose except as
provided in this Section 7.09. The parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law.
Section 7.10 Equitable Remedies.
Each
party hereto acknowledges that the other parties hereto would be irreparably damaged in the event of a breach or threatened breach by such party of any of its obligations under this
Agreement and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, each of the other parties hereto shall, in addition to any and all other rights
and remedies that may be available to them in respect of such breach, be entitled to an injunction from a court of competent jurisdiction (without any requirement to post bond) granting such parties
specific performance by such party of its obligations under this Agreement. In the event that any party files a suit to enforce the covenants contained in this Agreement (or obtain any other
remedy in respect of any breach thereof), the prevailing party in the suit shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party
in conduction the suit, including reasonable attorney's fees and expenses.
Section 7.11 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of
this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 7.12 Waiver of Jury Trial.
EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 7.13 Actions by the Company.
Any
actions, including without limitation any decisions, waivers, requests or consents, to be taken or made by the Company under this Agreement shall only be made with (i) prior
approval of the Related Party Transactions Committee of the Board, or (ii) if such committee is no longer in existence, prior approval of the Board
(provided, that the Holdings Board Members shall not participate in such decision).
Section 7.14 Section 16 Matters.
So
long as the Shareholders have the right to designate a Holdings Board Member, the Board shall take such action as is reasonably necessary to cause the exemption of any acquisition or
disposition of Common Stock or other equity securities by the Shareholders in connection with a sale of the Company from the liability provisions of Section 16(b) of the Exchange Act pursuant
to Rule 16b-3, including by passing one or more exemptive resolutions in connection with each purported acquisition or disposition of Common Stock or other equity securities by the Shareholders
in connection with a sale of the Company.
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Section 7.15 Trading Restriction Periods.
For
so long as Holdings is entitled to designate a Holdings Board Member, Holdings shall, and shall cause each of its controlled Affiliates to, abide by the provisions of the Securities
Trading Policy of the Company in the form attached hereto in Exhibit B that are generally applicable to any Covered Person under the headings (i) "Quarterly Trading Restrictions" and
(ii) "Event-Specific Trading Restriction Periods" (and, for purposes of this clause (ii), solely with respect to restrictions that are communicated reasonably in advance in writing to
Holdings by the Company), but subject to the permitted exceptions therein.
[Signature
Page Immediately Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
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Company:
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[COMBINED CORPORATION]
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By:
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Name:
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Title:
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Shareholders:
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SAPPHIRE HOLDING S.À.R.L.
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By:
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Name:
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TDR CAPITAL II HOLDINGS L.P.
acting by its manager TDR CAPITAL LLP
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Name:
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Title:
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In presence of:
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Signature of Witness:
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[Signature Page to Shareholders Agreement]
Table of Contents
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TDR CAPITAL LLP
In its capacity as manager to TDR Capital II Holdings L.P.
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Table of Contents
Exhibit A
EXHIBIT A JOINDER AGREEMENT
This Joinder Agreement (this "Joinder Agreement") is made as of the date written below by the
undersigned (the "Joining Party") in accordance with the Shareholders Agreement dated as of
[ · ] (as the same may be amended from time to time, the
"Shareholders Agreement") among [Combined Corporation], a Delaware corporation (the
"Company"), Sapphire Holding S.à.r.l. ("Holdings"), TDR Capital II Holdings L.P.
("Parent") and TDR Capital LLP ("Manager", together with Holdings, Parent and each Person that
has executed and delivered to the Company a joinder to this Agreement in accordance with Section 3.01(d), the "Shareholders").
Capitalized
terms used, but not defined, herein shall have the meaning ascribed to such terms in the Shareholders Agreement.
The
Joining Party hereby acknowledges and agrees that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party under the Shareholders Agreement as of
the date hereof and shall have all of the rights and obligations of the Shareholder from whom it has acquired the Common Stock (to the extent permitted by the Shareholders Agreement) as if it had
executed the Shareholders Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Shareholders
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below. Date:
[ ], 20[ ]
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AGREED ON THIS [ ], 20[ ]:
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Exhibit B
SECURITIES TRADING POLICY
A-2
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SECURITIES TRADING POLICY
PURPOSE
The Board of Directors (the "Board") of [Combined Corporation] (the
"Company") has adopted this Securities Trading Policy (this "Policy") to provide guidelines to all
officers, directors and employees of the Company with respect to transactions in the Company's securities, and the handling of confidential information about the Company and the companies with which
the Company does business, including compliance with securities laws that prohibit certain persons who are aware of material non-public information
(commonly known as "MNPI") about a company from (i) trading in securities of that company and (ii) providing material non-public information to other persons who may trade on the basis
of that information.
Federal
and state securities laws prohibit the purchase or sale of a company's securities by anyone who is aware of material information about a company that is not generally known by or
available to the public. These laws also prohibit anyone who is aware of material non-public information from disclosing this information to others who may trade. Companies and their controlling
persons may also be subject to liability if they fail to take reasonable steps to prevent insider trading by company personnel.
This
Policy is designed to prevent insider trading or even allegations of insider trading. Your strict adherence to this Policy will help safeguard both your and our reputation and will
further ensure that we conduct our business with the highest level of integrity and in accordance with the highest ethical standards.
COVERED PERSONS
This Policy applies to:
-
•
-
you as an officer, director and/or employee of the Company or one of its subsidiaries;
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•
-
the family members and others who reside in your household, and to any family members who do not live in your household but whose transactions
in Company Securities (as defined below) are directed by you or are subject to your influence or control (such as parents, in-laws or children who consult with you before they trade in Company
Securities) ("Family Members");
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•
-
any entities, such as corporations, partnerships or trusts, that you influence or control ("Controlled
Entities"); and
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•
-
our contractors or consultants, who have access to material non-public information about the Company, and their Family Members and Controlled
Entities.
We
refer to the individuals and entities listed above as "Covered Persons" in this Policy, and to be clear, transactions by your Family
Members and Controlled Entities will be treated as your transactions under this Policy and federal securities laws.
COVERED TRANSACTIONS
This Policy applies to virtually all transactions in the Company's securities, including common stock, options to purchase common stock,
preferred stock, warrants, debt securities (e.g., convertible, senior or subordinated notes) and any other securities issued by the Company ("Company
Securities"). Company Securities also include derivative securities relating to the Company's stock, even if not issued by the Company, such as exchange-traded options
(e.g., puts and calls).
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RESPONSIBILITY
You have ethical and legal obligations to maintain the confidentiality of information about the Company and to not engage in transactions in
Company Securities while in possession of material non-public information. You are responsible for making sure that you and your Family Members and Controlled Entities comply with this Policy. In all
cases, the responsibility for determining whether an individual is in possession of material non-public information rests with that individual, and any action on the part of the Company, our General
Counsel, or any other employee or director pursuant to this Policy (or otherwise) does not in any way constitute legal advice or insulate an individual from liability under applicable securities laws.
You could be subject to severe legal penalties
and disciplinary action by the Company for any conduct prohibited by this Policy or applicable securities laws, as described below under the heading "Consequences of Violations."
ADMINISTRATION
This Policy will be administered by our General Counsel and any other employees of the Company designated by the General Counsel. All
determinations and interpretations by our General Counsel will be final and not subject to review.
POLICY STATEMENT
It is the Company's policy that a Covered Person, who is aware of material non-public information relating to the Company, may not,
directly or indirectly through other persons or entities:
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•
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engage in transactions in Company Securities, except as specified in this Policy under the headings "Transactions Under Company Plans,"
"Transactions Not Involving a Purchase or Sale" and "Rule 10b5- 1 Plans;"
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•
-
recommend the purchase or sale of any Company Securities;
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•
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disclose material non-public information to persons within the Company whose jobs do not require them to have that information, or outside of
the Company to other persons (including, but not limited to, family, friends, business associates, investors and third-party service providers, such as consulting firms), unless any such disclosure is
made in accordance with the Company's policies regarding the protection or authorized external disclosure of information regarding the Company; or
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•
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assist anyone engaged in the above activities.
In
addition, it is our policy that no Covered Person who, in the course of working for or with the Company, learns of material non-public information about a company with which the
Company does business, including a customer or supplier of the Company, may trade in that company's securities until the information becomes public or is no longer material.
Unless
specified in this Policy, there are no exceptions to this Policy. Transactions that may be necessary or justifiable for independent reasons (such as the need to raise money for an
emergency expenditure), or small transactions, are not exempt from this Policy. Federal securities laws do not recognize mitigating circumstances, and in any event, even the appearance of an improper
transaction must be avoided to preserve the Company's reputation for adhering to the highest standards of conduct.
Remember,
it makes no difference whether or not you relied upon or used material non-public information in deciding to trade: the bottom line is that if you are aware of material
non-public information about the Company, the prohibitions set forth in this Policy apply.
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MATERIAL NON-PUBLIC INFORMATION
Material Information. Information is considered "material" if a reasonable investor would consider the information important in making a
decision to
buy, hold or sell securities. Any information that could be expected to affect a company's stock price (positively or negatively) should be considered material. There is no bright-line standard for
assessing materiality; instead, materiality is based on an assessment of all of the facts and circumstances and is often evaluated by enforcement authorities with the benefit
of hindsight. While it is not possible to define all categories of material information, some examples of information that ordinarily would be regarded as material
are:
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projections of future earnings or losses, or other earnings guidance;
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changes to prior earnings guidance, or the decision to suspend earnings guidance;
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a proposed merger, acquisition, or joint venture;
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a proposed acquisition or disposition of a significant asset;
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a restructuring;
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a significant related-party transaction;
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a change in dividend policy, the declaration of a stock split, or offering additional securities;
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changes in bank borrowings or other financing transactions out of the ordinary course;
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the establishment of a repurchase program for Company Securities;
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a change in management;
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a change in auditors or notification that the auditor's reports may no longer be relied upon;
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pending or threatened significant litigation, regulatory action or investigation, or the resolution of such litigation, action or
investigation;
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impending bankruptcy or the existence of severe liquidity problems;
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cybersecurity risks and incidents, including vulnerabilities and breaches;
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the gain or loss of a significant customer or supplier; or
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the imposition of a ban on trading in Company Securities or the securities of another company.
When Information is Considered Public. Information that has not been disclosed to the public is generally considered to be non-public
information. In
order to establish that the information has been disclosed to the public, it may be necessary to demonstrate that the information has been widely disseminated. Information is considered to be widely
disseminated if it has been disclosed through channels such as Bloomberg, the Dow Jones "broad tape," newswire services, a broadcast on widely-available radio or television programs, publication in a
widely-available newspaper, magazine or news website, or public disclosure documents filed with the U.S. Securities and Exchange Commission (the "SEC")
that are available on the SEC's website. By contrast, information is probably not considered to be widely disseminated if available only to the Company's employees, if it is only available to a select
group of analysts, brokers and institutional investors or if it only appears on the Company's website.
Once
information is widely disseminated, it is still necessary to provide the investing public with sufficient time to absorb the information in order to avoid the implication of
impropriety. Ordinarily, information should not be considered public until two full business days have passed after its formal release to the market. For example, (i) if the Company makes an
announcement before the market opens on a Monday, you should not trade in Company Securities until Wednesday; or (ii) if the Company makes an announcement after the market closes on a Friday,
you should not trade in
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Company
Securities until Wednesday. Depending on the circumstances and the importance of the information at hand, the Company may determine that a longer or shorter period should apply to the release
of specific material non-public information.
TRANSACTIONS UNDER COMPANY PLANS
This Policy does not apply to the following transactions, except as specifically noted:
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•
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Stock Option Exercises. This Policy does not apply to the exercise of a
stock option acquired by a director, officer or employee pursuant to the Company's incentive compensation plans or to the exercise of a tax withholding right pursuant to which a Covered Person has
elected to have the Company withhold shares subject to an option to satisfy tax withholding requirements. This Policy does apply, however, to any sale of stock as part of a broker-assisted cashless
exercise of an option or any other market sale for the purpose of generating the cash needed to pay the exercise price of an option.
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•
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Restricted Stock Awards. This Policy does not apply to the vesting of
restricted stock or the exercise of a tax withholding right pursuant to which you elect to have the Company withhold shares of stock to satisfy tax withholding requirements upon the vesting of any
restricted stock. The Policy does apply, however, to any market sale of restricted stock.
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•
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401(k) Plan. This Policy does not apply to purchases of Company Securities
in the Company's 401(k) plan resulting from your periodic contribution of money to the plan pursuant to your payroll deduction election. This Policy does apply, however, to certain elections you may
make under the 401(k) plan, including: (a) an election to increase or decrease the percentage or amount of your periodic contributions that will be allocated to the Company stock fund;
(b) an election to make an intra-plan transfer of an existing account balance into or out of the Company stock fund; and (c) an election to borrow money against your 401(k) plan account
if the loan will result in a liquidation of some or all of your Company stock fund balance.
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•
-
Other Similar Transactions. Any other purchase of Company Securities
directly from the Company or sales of Company Securities to the Company are not subject to this Policy.
TRANSACTIONS NOT INVOLVING A PURCHASE OR SALE
Bona fide gifts are not transactions subject to this Policy, unless the person making the gift
(i) has reason to believe that the recipient intends to sell the Company Securities while the Covered Person is aware of material non-public information or (ii) is subject to the trading
restrictions specified below under the heading "Additional Procedures" and the sales by the recipient of the Company Securities occur during a Blackout Period (as defined below). Moreover,
transactions in mutual funds that are invested in Company Securities are not transactions subject to this Policy.
SPECIAL AND PROHIBITED TRANSACTIONS
Certain types of transactions pose a heightened legal risk and/or appearance of improper conduct. We have therefore adopted the following
specific policies:
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•
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Short-Term Trading. Short-term trading of Company Securities may be
distracting to the person and may unduly focus the person on the Company's short-term stock market performance rather than the Company's long-term business objectives. For these reasons, any director
or Section 16 officer who purchases Company Securities in the open market may not sell any Company Securities of the same class during the six-month period following the purchase (or vice
versa).
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•
-
Frequent Trading. Frequent trading can be time consuming and distracting,
and frequent trading of Company Securities can create an appearance of wrongdoing even if the decision to trade was
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ADDITIONAL PROCEDURES
The Company has established additional procedures in order to assist the Company in the administration of this Policy, to facilitate compliance
with laws prohibiting insider trading while in possession of material non-public information and to avoid the appearance of any impropriety.
Individuals
and entities subject to our quarterly or event-specific trading restrictions as described below, including directors, officers, and employees of the Company or one of its
subsidiaries, as well as their respective Family Members and Controlled Entities, as such individuals have been designated and notified by our General Counsel, are referred to herein as
"Designated Persons."
Pre-Clearance Procedures
Designated Persons may not engage in any transaction in Company Securities without first obtaining pre-clearance of the transaction in writing
from our General Counsel, who must consult with the Chairman of the Board (or, if the Chairman of the Board proposes to make any transaction in Company Securities, then a member of the Audit Committee
of the Board) on any request for pre-clearance. A request for pre-clearance should be submitted to our General Counsel in writing at least three business days in advance of the proposed transaction.
Our General Counsel will make every effort to respond to requests as quickly and expeditiously as possible. However, our
General Counsel is not obligated to approve a transaction submitted for pre-clearance, and he or she may determine not to permit the trade.
If
our General Counsel proposes to make any transaction in Company Securities, then our Chief Executive Officer (who must consult with the Chairman of the Board and with assistance from
counsel other than our General Counsel) will be responsible for pre-clearing or denying the proposed trade in accordance with the procedures outlined herein.
If
a request for pre-clearance is denied, then the individual who made the request should refrain from initiating any transaction in Company Securities and should not inform any other
person of the restriction. If a request for pre-clearance is approved, then the individual who made the request has three business days to affect the transaction (or, if sooner, before commencement of
a quarterly or event-driven Blackout Period). In the case of a pre-clearance for a 10b5-1 Plan, the plan must be established within seven business days (or, if sooner, before commencement of a
quarterly or event-driven Blackout Period).
When
a request for pre-clearance is made, the requestor should carefully consider whether he or she may be aware of any material non-public information about the Company and should
describe fully those circumstances when requesting pre-clearance.
To
facilitate the process, the Company has prepared the pre-clearance form attached to this Policy as Exhibit A. You are encouraged to complete and provide the pre-clearance form
to our General Counsel when requesting pre- clearance. You remain obligated to timely submit pre-clearance requests in writing, however, should you choose not to complete and return the pre-clearance
form attached to this Policy.
Under
no circumstance may a person trade or initiate a 10b5-1 Plan while aware of material non-public information about the Company, even if pre-cleared. Thus, if you become aware of
material non-public information after receiving pre-clearance, but before the trade has been executed or the 10b5-1 Plan has been initiated, then you must not affect the pre-cleared transaction or
initiate the pre-cleared plan.
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Quarterly Trading Restrictions
Designated Persons must not trade Company Securities during certain periods ("Blackout Periods")
closely related to the preparation and announcement of our earnings. Our General Counsel, in consultation with our Chief Executive Officer and Chief Financial Officer, will determine which employees
will be subject to these quarterly trading restrictions and notify such Designated Persons that they are subject to the restrictions. Our Blackout Periods include:
-
•
-
with respect to our first fiscal quarter, the Blackout Period will begin on the 20th calendar day of March and end after two full
business days have passed after the public release of our earnings results for the first quarter;
-
•
-
with respect to our second fiscal quarter, the Blackout Period will begin on the 20th calendar day of June and after two full business
days have passed after the public release of our earnings results for the second quarter;
-
•
-
with respect to our third fiscal quarter, the Blackout Period will begin on the 20th calendar day of September and end after two full
business days have passed after the public release of our earnings results for the third quarter; and
-
•
-
with respect to our fourth fiscal quarter, the Blackout Period will begin on the 15th calendar day of December and end on the third
business day following the date of the public release of our earnings results for the fourth quarter.
Under
very limited circumstances, a person (other than our directors and Section 16 officers) subject to this restriction may be permitted to trade during a Blackout Period, but
only if our General Counsel concludes that the person does not in fact possess material non-public information. Persons wishing to trade during a Blackout Period must contact our General Counsel for
approval at least three business days in advance of any proposed transaction involving Company Securities, as described above.
Event-Specific Trading Restriction Periods
There may be times when our directors or a limited number of officers and employees have knowledge of an event (e.g., a potential
transaction) that is or may be material to the Company. It may be appropriate in these circumstances to prohibit those directors, officers and employees, as well as their Family Members and Controlled
Entities, from trading Company Securities while the event remains material and nonpublic. Our General Counsel, in consultation with our Chief Executive Officer and Chief Financial Officer, will
determine whether an event is material, and whether certain officers and employees will be subject to the event-specific trading restrictions, and notify such Designated Persons.
Moreover,
our financial results may be sufficiently material in a particular quarter that, in the judgment of our General Counsel, these situations would require that Designated Persons
should refrain from trading in Company Securities even sooner than the typical Blackout Period described above. In that situation, our General Counsel may notify Designated Persons that they should
not trade in the Company's Securities, without disclosing the reason for the restriction.
The
existence of an event-specific trading restriction period or extension of a Blackout Period will not be announced to the Company as a whole and should not be communicated to other
persons. Even if our General Counsel has not designated you as a person who should not trade due to an event-specific restriction, you should not trade while aware of material non-public information.
Exceptions will not be granted during an event-specific trading restriction period.
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Exceptions
Quarterly and event-driven trading restrictions do not apply to transactions not subject to this Policy, as described above under the headings
"Transactions Under Company Plans" and "Transactions Not Involving a Purchase or Sale." In addition, the requirement for pre-clearance and the quarterly and event-driven trading restrictions do not
apply to transactions conducted pursuant to approved Rule 10b5-1 plans, described under the heading "Rule 10b5- 1 Plans."
RULE 10B5-1 PLANS
Rule 10b5-1 under the Exchange Act provides a defense from insider trading liability under Rule 10b-5. In order to be eligible to
rely on this defense, a person subject to this Policy must enter into a Rule 10b5-1 plan for transactions in Company Securities that meets certain conditions specified in the Rule (a
"10b5-1 Plan"). If the plan meets the requirements of Rule 10b5-1, Company Securities may be purchased or sold under the 10b5-1 Plan without
regard to certain insider trading restrictions. To comply with the Policy, a 10b5-1 Plan must be approved by our General Counsel and meet the requirements of Rule 10b5-1. In general, a 10b5-1
Plan must be entered into at a time when the person entering into the plan is not aware of material non-public information. Once the plan is adopted, the person must not exercise any influence over
the amount of securities to be traded, the price at which they are to be traded or the date of the trade. The plan must either specify the amount, pricing and timing of transactions in advance or
delegate discretion on these matters to an independent third party.
Any
10b5-1 Plan must be submitted for approval 14 days prior to the entry into the 10b5-1 Plan. No further pre- approval of transactions conducted pursuant to the 10b5-1 Plan will
be required.
POST-TERMINATION TRANSACTIONS
This Policy continues to apply to transactions in Company Securities even after termination of service to the Company. If an individual is in
possession of material non-public information when his or her service terminates, that individual may not trade in Company Securities until that information has become public or is no longer material.
The pre-clearance procedures specified under the heading "Additional Procedures" above, however, will cease to apply to transactions in Company Securities upon the expiration of any Blackout Period or
other Company-imposed trading restrictions applicable at the time of the termination of service.
CONSEQUENCES OF VIOLATION
The purchase or sale of securities while aware of material non-public information, or the disclosure of material non-public information to
others who then trade in the Company's Securities, is prohibited by the federal and state laws. Insider trading violations are pursued vigorously by the SEC, U.S. Attorneys, state enforcement
authorities and private plaintiffs as well as under the laws of foreign jurisdictions. Punishment for insider trading violations is severe and could include significant fines and imprisonment.
While
the regulatory authorities concentrate their efforts on the individuals who trade, or who tip inside information to others who trade, the federal securities laws also impose
potential liability on companies and other "controlling persons" if they fail to take reasonable steps to prevent insider trading by company personnel.
In
addition, an individual's failure to comply with this Policy may subject the individual to Company-imposed sanctions, including dismissal for cause, whether or not the employee's
failure to comply results in a violation of law. Of course, a violation of law, or even an SEC investigation that does not result in prosecution, can tarnish a person's reputation and irreparably
damage a career.
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SUPPORT
Any person who has a question about this Policy or its application to any proposed transaction may obtain additional guidance from our General
Counsel, who can be reached by telephone at [ · ] or by e-mail at
[ · ].
CERTIFICATION
Each of Designated Persons must certify their understanding of, and intent to comply with, this Policy. A form of certification is attached to
this Policy as Exhibit B.
This
Policy was adopted by the Board on [ · ].
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Exhibit A
Request for Pre-Clearance Form
|
|
|
|
|
To:
|
|
General Counsel
|
|
|
|
[Combined Corporation] (the "Company")
|
From:
|
|
|
|
Re:
|
|
Proposed transaction in Company Securities
|
This
is to advise you that the undersigned intends to execute a transaction in the Company's securities on [ ]
[ ], 20[ ], and thereafter until the trading window shall close and does hereby request that the Company pre-clear the
transaction as required by its Securities Trading Policy (the "Policy").
The
general nature of the transaction is as follows (e.g., open market purchase of 10,000 shares of common stock through NASDAQ or privately-negotiated sale of warrants for the
purchase of 5,000 shares of common stock):
The
undersigned is not in possession of material non-public information (as described in the Policy) about the Company and will not enter into the transaction if the undersigned comes
into possession of any material non-public information about the Company between the date hereof and the proposed trade execution date.
The
undersigned has read and understands the Policy [and the Company's Section 16 Compliance Policy] and certifies that the above proposed transaction will
not violate the Policy [and the Section 16 Compliance Policy].*
The
undersigned agrees to advise the Company promptly if, as a result of future developments, any of the foregoing information becomes inaccurate or incomplete in any respect. The
undersigned understands that the Company may require additional information about the transaction, and agrees to provide such information upon request.
Dated: ,
20[ ]
|
|
|
|
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|
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Very truly yours,
[Signature]
[Print Name]
|
Approved:
|
|
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General Counsel of [Combined Corporation]
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|
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Dated: , 20[ ]
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-
*
-
Bracketed
language in this paragraph need only appear in forms submitted by directors and Section 16 directors and officers.
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Exhibit B
Form of Compliance Certification
CERTIFICATION
I
certify that:
-
(i)
-
I
have read and understand [Combined Corporation]'s (the "Company") Securities Trading Policy
(the "Policy"). I understand that the General Counsel is available to answer any questions I have regarding the Policy.
-
(ii)
-
Since
the date on which the Policy was adopted, or such shorter period of time that I have been an employee of the Company, I have complied with the Policy.
-
(iii)
-
I
will continue to comply with the Policy for as long as I am subject to it.
|
|
|
|
|
Print name:
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|
|
Signature:
|
|
|
Date:
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|
|
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Annex E
COMBINED COMPANY
2020 INCENTIVE AWARD PLAN
1. Background and Purpose. (a) Plan History. The Plan is intended as the successor to and continuation of the 2017
Incentive Award Plan, as amended (the "Prior Plan"), of WillScot Corporation (the predecessor to the Combined Company). From and after the Effective
Date, no additional Awards will be granted under the Prior Plan. All Awards granted on or after the Effective Date will be granted under this Plan. All Awards granted under the Prior Plan will remain
subject to the terms of the Prior Plan.
(b) Purpose. The purpose of the Plan is to provide a means through which the Company and its Affiliates may
attract and retain key personnel and to provide a means whereby directors, officers, employees, consultants and advisors (and prospective directors, officers, employees, consultants and advisors) of
the Company and its Affiliates can acquire and maintain an equity interest in the Company, or be paid incentive compensation, which may (but need not) be measured by reference to the value of Common
Shares, thereby strengthening their commitment to the welfare of the Company and its Affiliates and aligning their interests with those of the Company's shareholders.
2. Definitions. The following definitions shall be applicable throughout the Plan:
(a) "Affiliate" means (i) any person or entity that directly or indirectly controls, is controlled by or is under
common control with the Company and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term "control" (including, with
correlative meaning, the terms "controlled by" and "under common control with"), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) "Award" means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation
Right, Restricted Stock, Restricted Stock Unit, Stock Bonus Award, and Performance Compensation Award granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Business Combination" has the meaning given such term in the definition of "Change in Control".
(e) "Cause" means, in the case of a particular Award, unless the applicable Award agreement states otherwise, (i) the
Company or an Affiliate having "cause" to terminate a Participant's employment or service, as defined in any employment or consulting or similar agreement between the Participant and
the Company or an Affiliate in effect at the time of such termination or (ii) in the absence of any such employment or consulting or similar agreement (or the absence of any definition of
"Cause" contained therein), (A) the Participant's indictment for, conviction of or plea of nolo contendere to, a felony (other than in connection
with a traffic violation) under any state or federal law, (B) the Participant's failure to substantially perform his or her essential job functions after receipt of written notice from the
Company requesting such performance, (C) an act of fraud or gross misconduct with respect, in each case, to the Company, by the Participant, (D) any material misconduct by the
Participant that could be reasonably expected to damage the reputation or business of the Company or any of its subsidiaries, or (E) the Participant's violation of a material policy of the
Company. Any determination of whether Cause exists shall be made by the Committee in its sole discretion.
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(f) "Change in Control" shall, in the case of a particular Award, unless the applicable Award agreement states otherwise or
contains a different definition of "Change in Control," be deemed to occur upon:
i. During
any twenty-four (24) month period, individuals who, as of the beginning of such period, constitute the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the beginning of such period whose
election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual initially elected
or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies by
or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;
ii. Any
"person" (as such term is defined in the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 35% or more of the combined voting power of the Company's then outstanding securities eligible to vote for the election of the Board (the "Company
Voting Securities"); provided, however, that the event described in this paragraph (ii) shall not be deemed to be a Change in Control by virtue of any of the following
acquisitions: (A) by the Company or any Subsidiary; (B) by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary; (C) by any
underwriter temporarily holding securities pursuant to an offering of such securities; (D) pursuant to a Non-Qualifying Transaction, as defined in paragraph (iii), or (E) by any
person of Company Voting Securities from the Company, if a majority of the Incumbent Directors approve in advance the acquisition of beneficial ownership of 35% or more of Company Voting Securities by
such person;
iii. The
consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving the Company or any of its Subsidiaries that
requires the approval of the Company's stockholders, whether for such transaction or the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business Combination: (A) more than 50% of the total voting power of (1) the corporation resulting from such
Business Combination (the "Surviving Corporation"), or (2) if applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect directors of the Surviving Corporation (the "Parent Corporation"), is represented by Company Voting Securities that were
outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination),
and such voting power among the holders thereof is in substantially the same proportion as the voting power of such Company Voting Securities among the holders thereof immediately prior to the
Business Combination; (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 35% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation
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of
the Business Combination were Incumbent Directors at the time of the Board's approval of the execution of the initial agreement providing for such Business Combination (any Business Combination
which satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a "Non-Qualifying Transaction"); or
iv. The
consummation of a sale of all or substantially all of the Company's assets or the stockholders of the Company approve a plan of complete liquidation or dissolution
of the Company.
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because any person acquires beneficial ownership of more than 35% of the Company Voting Securities
as a result of the acquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securities outstanding; provided, that if after such acquisition by the Company
such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in
Control of the Company shall then occur.
Solely
with respect to any award that constitutes "deferred compensation" subject to Section 409A of the Code and that is payable on account of a Change in Control (including any
installments or stream of payments that are accelerated on account of a Change in Control), a Change in Control shall occur only if such event also constitutes a "change in the ownership", "change in
effective control", and/or a "change in the ownership of a substantial portion of assets" of the Company as those terms are defined under Treasury Regulation §1.409A-3(i)(5), but only to
the extent necessary to establish a time or form of payment that complies with Section 409A of the Code, without altering the definition of Change in Control for purposes of determining whether
rights to such award become vested or otherwise unconditional upon the Change in Control.
(g) "Code" means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any
section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance.
(h) "Committee" means the Compensation Committee of the Board or, if no such committee has been appointed by the Board, the
Board.
(i) "Common Shares" means shares of the Company's common stock, par value $0.0001 per share (and any stock or other
securities into which such ordinary shares may be converted or into which they may be exchanged).
(j) "Company" means [Combined Company], a Delaware Corporation.
(k) "Confidential Information" means any and all confidential and/or proprietary trade secrets, knowledge, data, or
information of the Company including, without limitation, any: (A) drawings, inventions, methodologies, mask works, ideas, processes, formulas, source and object codes, data, programs, software
source documents, works of authorship, know-how, improvements, discoveries, developments, designs and techniques, and all other work product of the Company, whether or not patentable or registrable
under trademark, copyright, patent or similar laws; (B) information regarding plans for research, development, new service offerings and/or products, marketing, advertising and selling,
distribution, business plans and strategies, business forecasts, budgets and unpublished financial statements, licenses, prices and costs, suppliers, customers, customer history, customer preferences,
or distribution arrangements; (C) any information regarding the skills or compensation of employees, suppliers, agents, and/or independent contractors of the Company; (D) concepts and
ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of the Company; (E) information about
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the
Company's investment program, trading methodology, or portfolio holdings; or (F) any other information, data or the like that is labeled confidential or described as confidential.
(l) "Date of Grant" means the date on which the granting of an Award is authorized, or such other date as may be specified in
such authorization.
(m) "Effective Date" means
[ · ], 2020.
(n) "Eligible Director" means a person who is a "non-employee director" within the meaning of Rule 16b-3 under the
Exchange Act.
(o) "Eligible Person" means any (i) individual employed by the Company or an Affiliate; provided, however, that no such
employee covered by a collective bargaining agreement shall be an
Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director of the
Company or an Affiliate; (iii) consultant or advisor to the Company or an Affiliate; provided that if the Securities Act applies such persons
must be eligible to be offered securities registrable on Form S-8 under the Securities Act; or (iv) prospective employees, directors, officers, consultants or advisors who have accepted
offers of employment or consultancy from the Company or its Affiliates (and would satisfy the provisions of clauses (i) through (iii) above once he or she begins employment with or
begins providing services to the Company or its Affiliates).
(p) "Exchange Act" has the meaning given such term in the definition of "Change in Control," and any reference in the Plan to
any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or
successor provisions to such section, rules, regulations or guidance.
(q) "Exercise Price" has the meaning given such term in Section 7(b) of the Plan.
(r) "Fair Market Value" means, as of any date, the value of Common Shares determined as follows:
(i) If
the Common Shares are listed on any established stock exchange or a national market system will be the closing sales price for such shares (or the closing bid, if no
sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable;
(ii) If
the Common Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Common Share will be the
mean between the high bid and low asked prices for the Common Shares on the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
(iii) In
the absence of an established market for the Common Shares, the Fair Market Value will be determined in good faith by the Committee.
(s) "Good Reason" means, if applicable to any Participant in the case of a particular Award, as defined in the Participant's
employment agreement or the applicable Award agreement.
(t) "Immediate Family Members" shall have the meaning set forth in Section 16(b).
(u) "Incentive Stock Option" means an Option that is designated by the Committee as an incentive stock option as described in
Section 422 of the Code and otherwise meets the requirements set forth in the Plan.
(v) "Indemnifiable Person" shall have the meaning set forth in Section 4(e) of the Plan.
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(w) "Intellectual Property Products" shall have the meaning set forth in Section 15(c) of the Plan.
(x) "Mature Shares" means Common Shares owned by a Participant that are not subject to any pledge or security interest and
that have been either previously acquired by the Participant on the open market or meet such other requirements, if any, as the Committee may determine are necessary in order to avoid an accounting
earnings charge on account of the use of such shares to pay the Exercise Price or satisfy a withholding obligation of the Participant.
(y) "Nonqualified Stock Option" means an Option that is not designated by the Committee as an Incentive Stock Option.
(z) "Option" means an Award granted under Section 7 of the Plan.
(aa) "Option Period" has the meaning given such term in Section 7(c) of the Plan.
(bb) "Outstanding Company Common Shares" has the meaning given such term in the definition of "Change in Control."
(cc) "Outstanding Company Voting Securities" has the meaning given such term in the definition of "Change in Control."
(dd) "Participant" means an Eligible Person who has been selected by the Committee to participate in the Plan and to receive
an Award pursuant to Section 6 of the Plan.
(ee) "Performance Compensation Award" shall mean any Award designated by the Committee as a Performance Compensation Award
pursuant to Section 11 of the Plan.
(ff) "Performance Criteria" shall mean the criterion or criteria that the Committee shall select for purposes of establishing
the Performance Goal(s) for a Performance Period with respect to any Performance Compensation Award under the Plan.
(gg) "Performance Formula" shall mean, for a Performance Period, the one or more objective formulae applied against the
relevant Performance Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance
Compensation Award has been earned for the Performance Period.
(hh) "Performance Goals" shall mean, for a Performance Period, the one or more goals established by the Committee for the
Performance Period based upon the Performance Criteria.
(ii) "Performance Period" shall mean the one or more periods of time, as the Committee may select, over which the attainment
of one or more Performance Goals will be measured for the purpose of determining a Participant's right to, and the payment of, a Performance Compensation Award.
(jj) "Permitted Transferee" shall have the meaning set forth in Section 16(b) of the Plan.
(kk) "Person" has the meaning given such term in the definition of "Change in Control."
(ll) "Plan" means this [Combined Company] 2020 Incentive Award Plan.
(mm) "Qualifying Termination" means the occurrence of either a termination of a Participant's employment by the Company
without Cause or for Good Reason, in either case, occurring on or within the 12-month period following the consummation of a Change in Control.
(nn) "Restricted Period" means the period of time determined by the Committee during which an Award is subject to
restrictions or, as applicable, the period of time within which performance is measured for purposes of determining whether an Award has been earned.
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(oo) "Restricted Stock Unit" means an unfunded and unsecured promise to deliver Common Shares, cash, other securities or
other property, subject to certain performance or time-based restrictions (including, without limitation, a requirement that the Participant remain continuously employed or provide continuous services
for a specified period of time), granted under Section 9 of the Plan.
(pp) "Restricted Stock" means Common Shares, subject to certain specified performance or time-based restrictions (including,
without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of the Plan.
(qq) "Retirement" means except as otherwise determined by the Committee and set forth in an Award agreement, termination of
employment from the Company and its Affiliates (other than for Cause) on a date the Participant is then eligible to receive immediate, early or normal retirement benefits under the provisions of any
of the Company's or its Affiliate's retirement plans, or if the Participant is not covered under any such plan, on or after attainment of age fifty-five (55) and completion of ten
(10) years of continuous service with the Company and its Affiliates or on or after attainment of age sixty-five (65) and completion of five (5) years of continuous service with
the Company and its Affiliates.
(rr) "SAR Period" has the meaning given such term in Section 8(b) of the Plan.
(ss) "Securities Act" means the Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any
section of the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, rules,
regulations or guidance.
(tt) "Stock Appreciation Right" or "SAR" means an Award granted under
Section 8 of the Plan.
(uu) "Stock Bonus Award" means an Award granted under Section 10 of the Plan.
(vv) "Strike Price" means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in the
case of a SAR granted in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent of an Option, the Fair Market Value on the Date of
Grant.
(xx) "Subsidiary" means, with respect to any specified Person:
(i) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Outstanding Company Voting Securities (without
regard to the occurrence of any contingency and after giving effect to any voting agreement or shareholders' agreement that effectively transfers voting power) is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any
partnership (or any comparable foreign entity (a) the sole general partner (or functional equivalent thereof) or the managing general partner of which is
such Person or Subsidiary of such Person or (b) the only general partners (or functional equivalents thereof) of which are that Person or one or more Subsidiaries of that Person (or any
combination thereof).
(yy) "Substitute Award" has the meaning given such term in Section 5(e).
3. Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expiration
date of the Plan, on and after which date no Awards may be granted hereunder, shall be the
tenth
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anniversary
of the Effective Date; provided, however, that such expiration shall not affect Awards then
outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards.
4. Administration. (a) The Committee shall administer the Plan. To the extent required to comply
with the provisions of Rule 16b-3 promulgated under the Exchange Act
(if the Board is not acting as the Committee under the Plan) it is intended that each member of the Committee shall, at the time he takes any action with respect to an Award under the Plan, be an
Eligible Director. However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted by the Committee that is otherwise validly granted
under the Plan. The acts of a majority of the members present at any meeting at which a quorum is present or acts approved in writing by a majority of the Committee shall be deemed the acts of the
Committee. Whether a quorum is present shall be determined based on the Committee's charter as approved by the Board.
(b) Subject
to the provisions of the Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations
conferred on the Committee by the Plan, to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of
Common Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any
Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Common Shares, other securities, other Awards or other property, or
canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances the delivery of cash, Common Shares, other securities, other Awards or other property and other amounts payable with respect to an Award shall be deferred either automatically or at the
election of the Participant or of the Committee; (vii) interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument or
agreement relating to, or Award granted under, the Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for
the proper administration of the Plan; (ix) accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards; and (x) make any other determination and take
any other action that the Committee deems necessary or desirable for the administration of the Plan.
(c) The
Committee may delegate to one or more officers of the Company or any Affiliate the authority to act on behalf of the Committee with respect to any matter, right,
obligation, or election that is the responsibility of or that is allocated to the Committee herein, and that may be so delegated as a matter of law, except for grants of Awards to persons subject to
Section 16 of the Exchange Act.
(d) Unless
otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award or
any documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons
or entities, including, without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company.
(e) No
member of the Board, the Committee, delegate of the Committee or any employee or agent of the Company (each such person, an "Indemnifiable
Person") shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect to the Plan or any Award hereunder. Each Indemnifiable
Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys' fees) that may be imposed upon or incurred by such
Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person
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may
be involved by reason of any action taken or omitted to be taken under the Plan or any Award agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company's
approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, provided that the Company
shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives
notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company's choice. The foregoing right of indemnification shall not be available to
an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts
or omissions of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person's bad faith, fraud or willful criminal act or omission or that such right of
indemnification is otherwise prohibited by law or by the Company's Certificate of Incorporation or By-Laws. The foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such Indemnifiable Persons may be entitled under the Company's Certificate of Incorporation or By-Laws, as a matter of law, or otherwise, or any other power that the Company
may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Notwithstanding
anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer the
Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee under the Plan.
5. Grant of Awards; Shares Subject to the Plan; Limitations. (a) The Committee may, from time to
time, grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Bonus Awards and/or
Performance Compensation Awards to one or more Eligible Persons.
(b) Subject
to Section 12 of the Plan, Awards granted under the Plan shall be subject to the following limitations: (i) the Committee is authorized to deliver
under the Plan an aggregate of Common Shares, (ii) the maximum number of Common Shares that may be granted under the Plan to any Participant during any single year with respect to Awards that
are Options and SARs shall be 1,500,000 Common Shares, and (iii) the maximum number of Common Shares that may be granted under the Plan during any single year to any Participant who is a
non-employee director, when taken together with any cash fees paid to such non-employee director during such year in respect of his or her service as a non-employee director, shall not exceed $600,000
in total value (calculating the value of any such Awards based on the grant date Fair Market Value of such Awards for financial reporting purposes); provided that the Board may make exceptions to this
limit for a non-executive chair of the Board.
(c) In
the event that (i) any Option or other Award granted hereunder is exercised through the tendering of Common Shares (either actually or by attestation) or by
the withholding of Common Shares by the Company, or (ii) withholding tax liabilities arising from such Option or other Award are satisfied by the tendering of Common Shares (either actually or
by attestation) or by the withholding of Common Shares by the Company, then in each such case the Common Shares so tendered or withheld shall be added to the Common Shares available for grant under
the Plan on a one-for-one basis. Shares underlying Awards under this Plan that are forfeited, cancelled, expire unexercised, or are settled in cash are available again for Awards under the Plan.
(d) Common
Shares delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the
open market or by private purchase, or a combination of the foregoing.
(e) Awards
may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding awards previously granted by an
entity acquired by the Company or with which the Company combines ("Substitute Awards"). The number of Common Shares underlying any Substitute Awards
shall not be counted against the aggregate number of Common Shares available for Awards under the Plan.
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(f) Notwithstanding
any other provision of the Plan to the contrary, Awards granted under the Plan (other than cash-based Awards) shall vest no earlier than the first
anniversary of the date on which the Award is granted; provided that the following Awards shall not be subject to the foregoing minimum vesting requirement: any (i) Substitute Awards,
(ii) Common Shares delivered in lieu of fully vested cash Awards, (iii) Awards to non-employee directors that vest on the earlier of the one-year anniversary of the date of grant and the
next annual meeting of stockholders which is at least 50 weeks after immediately preceding year's annual meeting, and (iv) additional Awards the Committee may grant, up to a maximum of
five percent (5%) of the available share reserve originally authorized for issuance under the Plan pursuant to Section 5(b) (subject to adjustment under Section 12); and, provided,
further, that the foregoing minimum vesting requirement does not apply to the Committee's discretion to provide for accelerated exercisability or vesting of any Award, including, but not limited to in
cases of retirement, death, disability or a Change in Control, in the terms of the Award agreement or otherwise.
6. Eligibility. Participation shall be limited to Eligible Persons who have entered
into an Award agreement or who have received written notification from the Committee, or from
a person designated by the Committee, that they have been selected to participate in the Plan.
7. Options. (a) Generally. Each Option granted under the Plan shall be evidenced by an Award agreement
(whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Option so granted shall be
subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement. All Options granted
under the Plan shall be Nonqualified Stock Options unless the applicable Award agreement expressly states that the Option is intended to be an Incentive Stock Option. Incentive Stock Options shall be
granted only to Eligible Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive
Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless the Plan has been approved by the shareholders of the Company in a manner intended to comply with the
stockholder approval requirements of Section 422(b)(1) of the Code; provided that any Option intended to be an Incentive Stock Option shall not
fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the
case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason an
Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof
shall be regarded as a Nonqualified Stock Option appropriately granted under the Plan.
(b) Exercise Price. The exercise price ("Exercise Price") per
Common Share for each Option shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant; provided, however, that
in the case of an Incentive Stock Option granted to an employee who, at the time of the grant of such Option, owns shares representing
more than 10% of the voting power of all classes of shares of the Company or any Affiliate, the Exercise Price per share shall not be less than 110% of the Fair Market Value per share on the Date of
Grant and provided further, that, notwithstanding any provision herein to the contrary, the Exercise Price shall not be less than the par value per
Common Share.
(c) Vesting and Expiration. Options shall vest and become exercisable in such manner and on such date or dates
determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the "Option Period"); provided, however, that the Option Period shall not exceed five years from the Date of Grant in the case
of an Incentive Stock Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the voting power of all classes of shares of the Company or any
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Affiliate;
provided, further, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any Option, which acceleration
shall not affect the terms and conditions of such Option other than with respect to exercisability. Unless otherwise provided by the Committee in an Award agreement: (i) an Option shall vest
and become exercisable with respect to 100% of the Common Shares subject to such Option on the fourth anniversary of the Date of Grant; (ii) the unvested portion of an Option shall expire upon
termination of employment or service of the Participant granted the Option, and the vested portion of such Option shall remain exercisable for (A) two years following termination of employment
or service by reason of such Participant's Retirement, death or disability (as determined by the Committee), but not later than the expiration of the Option Period or (B) 90 days
following termination of employment or service for any reason other than such Participant's Retirement, death or disability, and other than such Participant's termination of employment or service for
Cause, but not later than the expiration of the Option Period; and (iii) both the unvested and the vested portion of an Option shall expire upon the termination of the Participant's employment
or service by the Company for Cause. If the Option would expire at a time when the exercise of the Option would violate applicable securities laws, the expiration date applicable to the Option will be
automatically extended to a date that is thirty (30) calendar days following the date such exercise would no longer violate applicable securities laws (so long as such extension shall not
violate Section 409A of the Code); provided, that in no event shall such expiration date be extended beyond the expiration of the Option Period.
(d) Method of Exercise and Form of Payment. No Common Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any federal, state, local and non-U.S. income and
employment taxes required to be withheld. Options that have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of
the Option accompanied by payment of the Exercise Price. The Exercise Price shall be payable (i) in cash, check, cash equivalent and/or Common Shares valued at the fair market value at the time
the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Common Shares in lieu of actual delivery of such
shares to the Company or other security interest and are Mature Shares and; (ii) by such other method as the Committee may permit in accordance with applicable law, in its sole discretion,
including without limitation: (A) in other property having a fair market value on the date of exercise equal to the Exercise Price or (B) if there is a public market for the Common
Shares at such time, by means of a broker-assisted "cashless exercise" pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares
otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a "net exercise" method whereby the Company
withholds from the delivery of the Common Shares for which the Option was exercised that number of Common Shares having a fair market value equal to the aggregate Exercise Price for the Common Shares
for which the Option was exercised. No fractional Common Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities or
other property shall be paid or transferred in lieu of any fractional Common Shares, or whether such fractional Common Shares or any rights thereto shall be canceled, terminated or otherwise
eliminated.
(e) Notification upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an
Incentive Stock Option under the Plan shall notify the Company in writing immediately after the date he makes a disqualifying disposition of any Common Shares acquired pursuant to the exercise of such
Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common Shares before the later of (A) two years after the Date of Grant
of the Incentive Stock Option or (B) one year after the date
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of
exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession of any Common Shares
acquired pursuant to the exercise of an Incentive Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence.
(f) Compliance With Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to
exercise an Option in a manner that the Committee determines would violate the Sarbanes- Oxley Act of 2002, if applicable, or any other applicable law or the applicable rules and regulations of the
Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or traded.
8. Stock Appreciation Rights. (a) Generally. Each SAR granted under the Plan shall be evidenced by an Award agreement
(whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each SAR so granted shall be subject
to the conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement. Any Option granted under the
Plan may include tandem SARs. The Committee also may award SARs to Eligible Persons independent of any Option.
(b) Exercise Price. The Exercise Price per Common Share for each SAR shall not be less than 100% of the Fair
Market Value of such share determined as of the Date of Grant
(c) Vesting and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire
according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable and shall expire in such manner
and on such date or dates determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the "SAR
Period"); provided, however, that notwithstanding any vesting dates set by the
Committee, the Committee may, in its sole discretion, accelerate the exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to
exercisability. Unless otherwise provided by the Committee in an Award agreement: (i) a SAR shall vest and become exercisable with respect to 100% of the Common Shares subject to such SAR on
the fourth anniversary of the Date of Grant; (ii) the unvested portion of a SAR shall expire upon termination of employment or service of the Participant granted the SAR, and the vested portion
of such SAR shall remain exercisable for (A) two years following termination of employment or service by reason of such Participant's Retirement, death or disability (as determined by the
Committee), but not later than the expiration of the SAR Period or (B) 90 days following termination of employment or service for any reason other than such Participant's Retirement,
death or disability, and other than such Participant's termination of employment or service for Cause, but not later than the expiration of the SAR Period; and (iii) both the unvested and the
vested portion of a SAR shall expire upon the termination of the Participant's employment or service by the Company for Cause.
(d) Method of Exercise. SARs that have become exercisable may be exercised by delivery of written or electronic
notice of exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding the foregoing,
if on the last day of the Option Period (or in the case of a SAR independent of an option, the SAR Period), the fair market value exceeds the Strike Price, the Participant has not exercised the SAR or
the corresponding Option (if applicable), and neither the SAR nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have been exercised by the Participant on such last
day and the Company shall make the appropriate payment therefor.
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(e) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number
of shares subject to the SAR that are being exercised multiplied by the excess, if any, of the fair market value of one Common Share on the exercise date over the Strike Price,
less an
amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld. The Company shall pay such amount in cash, in Common Shares valued at fair market value, or
any combination thereof, as determined by the Committee. No fractional Common Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash,
other securities or other property shall be paid or transferred in lieu of any fractional Common Shares, or whether such fractional Common Shares or any rights thereto shall be canceled, terminated or
otherwise eliminated.
9. Restricted Stock and Restricted Stock Units. (a) Generally. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award
agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each such grant shall be
subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement.
(b) Restricted Accounts; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, a book entry in a
restricted account shall be established in the Participant's name at the Company's transfer agent and, if the Committee determines that the Restricted Stock shall be held by the Company or in escrow
rather than held in such restricted account pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company
(i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Stock covered by such
agreement. If a Participant shall fail to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and blank share power within the amount of time specified
by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section 9 and the applicable Award agreement, the Participant generally shall have the rights
and privileges of a shareholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock and the right to receive dividends, if applicable. To the extent
shares of Restricted Stock are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned to the Company, and all rights of the Participant to such shares and
as a shareholder with respect thereto shall terminate without further obligation on the part of the Company.
(c) Vesting; Acceleration of Lapse of Restrictions. Unless otherwise provided by the Committee in an Award
agreement: (i) the Restricted Period shall lapse with respect to 100% of the Restricted Stock and Restricted Stock Units on the fourth anniversary of the Date of Grant; and (ii) the
unvested portion of Restricted Stock and Restricted Stock Units shall terminate and be forfeited upon termination of employment or service of the Participant granted the applicable Award.
(d) Delivery of Restricted Stock and Settlement of Restricted Stock Units. (i) Upon the expiration of the
Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in the applicable Award agreement shall be of no further force or effect with respect to such shares,
except as set forth in the applicable Award agreement. If an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his beneficiary, without charge, the
share certificate evidencing the shares of Restricted Stock that have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share).
Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Committee and attributable to any particular
share of Restricted Stock shall be distributed to the Participant in
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cash
or, at the sole discretion of the Committee, in Common Shares having a fair market value equal to the amount of such dividends, upon the release of restrictions on such share and, if such share
is forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by the Committee in the applicable Award agreement).
(ii) Unless
otherwise provided by the Committee in an Award agreement, upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units,
the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Share for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its
sole discretion, elect to (i) pay cash or part cash and part Common Share in lieu of delivering only Common Shares in respect of such Restricted Stock Units or (ii) defer the delivery of
Common Shares (or cash or part Common Shares and part cash, as the case may be) beyond the expiration of the Restricted Period if such delivery would result in a violation of applicable law until such
time as is no longer the case. If a cash payment is made in lieu of delivering Common Shares, the amount of such payment shall be equal to the fair market value of the Common Shares as of the date on
which the Restricted Period lapsed with respect to such Restricted Stock Units, less an amount equal to any federal, state, local and non-U.S. income and employment taxes required to be withheld.
10. Stock Bonus Awards. The Committee may issue unrestricted Common Shares, or other Awards
denominated in Common Shares, under the Plan to Eligible Persons, either alone or in tandem
with other awards, in such amounts as the Committee shall from time to time in its sole discretion determine. Each Stock Bonus Award granted under the Plan shall be evidenced by an Award agreement
(whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Stock Bonus Award so granted
shall be subject to such conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement.
11. Performance Compensation Awards. (a) Generally. The Committee shall have the authority, at the time of grant of any Award described in
Sections 7 through 10 of the Plan, to designate such Award as a Performance Compensation Award. The Committee shall have the authority to make an award of a cash bonus to any Participant and
designate such Award as a Performance Compensation Award.
(b) Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular
Performance Period, the Committee shall have sole discretion to select the length of such
Performance Period, the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the
Performance Goals(s) that is (are) to apply and the Performance Formula.
(c) Performance Criteria. The Performance Criteria that will be used to establish the Performance Goal(s) for
Performance Compensation Awards granted on or after the date of the Company's 2017 Annual Meeting of Shareholders shall be based on the attainment of specific levels of performance of the Company
(and/or one or more Affiliates, divisions, business segments or operational units, or any combination of the foregoing) and shall include the following: (i) net earnings or net income (before
or after taxes); (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or revenue growth; (iv) gross profit or gross profit growth;
(v) operating profit (before or after taxes); (vi) return measures (including, but not limited to, return on assets, capital, invested capital, equity, or sales); (vii) cash flow
(including, but not limited to, operating cash flow, free cash flow, net cash provided by operations and cash flow return on capital); (viii) financing and other capital raising transactions
(including, but not limited to, sales of the Company's equity or debt securities); (ix) earnings before or after taxes, interest, depreciation and/or amortization; (x) gross or operating
margins; (xi) productivity ratios; (xii) share
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price
(including, but not limited to, growth measures and total shareholder return); (xiii) expense targets; (xiv) margins; (xv) productivity and operating efficiencies;
(xvi) objective measures of customer satisfaction; (xvii) customer growth; (xviii) working capital targets; (xix) measures of economic value added; (xx) inventory
control; (xxi) enterprise value; (xxii) sales; (xxiii) debt levels and net debt; (xxiv) combined ratio; (xxv) timely launch of new facilities; (xxvi) client
retention; (xxvii) employee retention; (xxviii) timely completion of new product rollouts; (xxix) cost targets; (xxx) reductions and savings; (xxxi) productivity and
efficiencies; (xxxii) strategic partnerships or transactions; and (xxxiii) objective measures of personal targets, goals or completion of projects. Any one or more of the Performance
Criteria may be used on an absolute or relative basis to measure the performance of the Company and/or one or more Affiliates as a whole or any business unit(s) of the Company and/or one or more
Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Criteria may be compared to the performance of a selected group of comparison or peer
companies, or a published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices. The Committee also has the authority to
provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this paragraph Any Performance Criteria that are financial
metrics, may be determined in accordance with United States Generally Accepted Accounting Principles ("GAAP") or may be adjusted when established to include or exclude any items otherwise includable
or excludable under GAAP.
(d) Modification of Performance Goal(s). The Committee is authorized at any time to adjust or modify the
calculation of a Performance Goal for such Performance Period, based on and in order to appropriately reflect any specified circumstance or event that occurs during a Performance Period, including but
not limited to the following events:(i) asset write-downs; (ii) litigation or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other
laws or regulatory rules affecting reported results; (iv) any reorganization and restructuring programs; (v) unusual and/or infrequently occurring items as described in Accounting
Principles Board Opinion No. 30 (or any successor pronouncement thereto) and/or in management's discussion and analysis of financial condition and results of operations appearing in the
Company's annual report to shareholders for the applicable year; acquisitions or divestitures; (vii) discontinued operations; (viii) any other specific unusual or infrequently occurring
or non-recurring events, or objectively determinable category thereof; (ix) foreign exchange gains and losses; and (x) a change in the Company's fiscal year.
(e) Payment of Performance Compensation Awards. (i) Condition to Receipt of
Payment. Unless otherwise provided in the applicable Award agreement, a Participant must be employed by the Company on the last day of a Performance Period to be eligible for
payment in respect of a Performance Compensation Award for such Performance Period.
(ii) Limitation. A Participant shall be eligible to receive payment in respect of a Performance Compensation
Award only to the extent that: (A) the Performance Goals for such period are achieved; and (B) all or some of the portion of such Participant's Performance Compensation Award has been
earned for the Performance Period based on the application of the Performance Formula to such achieved Performance Goals.
(iii) Certification. Following the completion of a Performance Period, the Committee shall review and certify in
writing whether, and to what extent, the Performance Goals for the Performance Period have been achieved and, if so, calculate and certify in writing that amount of the Performance Compensation Awards
earned for the period based upon the Performance Formula. The Committee shall then determine the amount of each Participant's Performance Compensation Award actually payable for the Performance
Period.
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(f) Timing of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to
Participants as soon as administratively practicable following completion of the certifications required by this Section 11.
12. Changes in Capital Structure and Similar Events. In the event of (a) any dividend (other
than ordinary cash dividends) or other distribution (whether in the form of cash, Common Shares, other securities
or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, spin- off, split-up, split-off, combination, repurchase or exchange of
Common Shares or other securities of the Company, issuance of warrants or other rights to acquire Common Shares or other securities of the Company, or other similar corporate transaction or event
(including, without limitation, a Change in Control) that affects the Common Shares, or
(b) unusual
or infrequently occurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the
Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation system, accounting
principles or law, such that in either case an adjustment is determined by the Committee in its sole discretion to be necessary or appropriate, then the Committee shall make any such adjustments in
such manner as it may deem equitable, including without limitation any or all of the following:
(i) adjusting
any or all of (A) the number of Common Shares or other securities of the Company (or number and kind of other securities or other property) that may be
delivered in respect of Awards or with respect to which Awards may be granted under the Plan (including, without limitation, adjusting any or all of the limitations under Section 5 of the Plan)
and (B) the terms of any outstanding Award, including, without limitation, (1) the number of Common Shares or other securities of the Company (or number and kind of other securities or
other property) subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award or (3) any applicable performance
measures (including, without limitation, Performance Criteria and Performance Goals);
(ii) providing
for a substitution or assumption of Awards, accelerating the exercisability of, lapse of restrictions on, or termination of, Awards or providing for a period
of time for exercise prior to the occurrence of such event; and
(iii) canceling
any one or more outstanding Awards and causing to be paid to the holders thereof, in cash, Common Shares, other securities or other property, or any
combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the price per Common Share received or to be received by other shareholders
of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the fair market value (as of a
date specified by the Committee) of the Common Shares subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in
such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the fair market value of a Common Share subject thereto may be canceled and terminated
without any payment or consideration therefor); provided, however, that in the case of any "equity
restructuring" (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718), the Committee shall make an equitable or proportionate adjustment to
outstanding Awards to reflect such equity
restructuring. Any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a
"modification" within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 12 shall be
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made
in a manner that does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder
and, upon notice, such adjustment shall be conclusive and binding for all purposes.
13. Effect of Change in Control. Except to the extent otherwise provided in an Award agreement, in
the event of a Change in Control, notwithstanding any provision of the Plan to the contrary, the
Committee may provide that, with respect to all or any portion of a particular outstanding Award or Awards:
(a) if
a Participant experiences a Qualifying Termination, the Participant's then outstanding Options and SARs shall become immediately exercisable as of the date of the
Participant's Qualifying Termination;
(b) if
a Participant experiences a Qualifying Termination, any Restricted Period in effect on the date of the Participant's Qualifying Termination shall expire as of such
date (including without limitation a waiver of any applicable Performance Goals);
(c) if
a Participant experiences a Qualifying Termination, Performance Periods in effect on the date of the Participant's Qualifying Termination shall end on such date, and
the Committee shall (i) determine the extent to which Performance Goals with respect to each such Performance Period have been met based upon such audited or unaudited financial information or
other information then available as it deems relevant and (ii) cause the Participant to receive partial or full payment of Awards for each such Performance Period based upon the Committee's
determination of the degree of attainment of the Performance Goals, or assuming that the applicable "target" levels of performance have been attained or on such other basis determined by the
Committee.
To
the extent practicable, any actions taken by the Committee under the immediately preceding clauses (a) through (c) shall occur in a manner and at a time which allows
affected Participants the ability to participate in the Change in Control transactions with respect to the Common Shares subject to their Awards.
14. Amendments and Termination. (a) Amendment and Termination of the Plan. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided that (i) no amendment to Section 11(c) or Section 14(b) (to the extent required by the
proviso in such
Section 14(b)) shall be made without shareholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any rules or requirements of any
securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted; provided, further, that any such amendment,
alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any
Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary.
(b) Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable
Award agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award agreement,
prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would
materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant; provided, further, that without shareholder approval, except as otherwise permitted under
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Section 12
of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee may not cancel any
outstanding Option or SAR where the Fair Market Value of the Common Shares underlying such Option or SAR is less than its Exercise Price and replace it with a new Option or SAR, another Award or cash
and (iii) the Committee may not take any other action that is considered a "repricing" for purposes of the shareholder approval rules of the applicable securities exchange or inter-dealer
quotation system on which the Common Shares are listed or quoted.
15. Restrictive Covenants. (a) Confidentiality .
By accepting an Award under the Plan, and as a condition thereof, each Participant
agrees not to, at any time, either during their employment or thereafter, divulge, use, publish or in any other manner reveal, directly or indirectly, to any person, firm, corporation or any other
form of business organization or arrangement, and to keep in the strictest confidence any Confidential Information, except (i) as may be necessary to the performance of the Participant's duties
to the Company, (ii) with the Company's express written consent, (iii) to the extent that any such information is in or becomes in the public domain other than as a result of the
Participant's breach of any of his or her obligations under this Section 15(a), or (iv) where required to be disclosed by court order, subpoena or other government process and in such
event, the Participant shall cooperate with the Company in attempting to keep such information confidential to the maximum extent possible. Upon the request of the Company or an Affiliate, the
Participant agrees to promptly deliver to the Company the originals and all copies, in whatever medium, of all such Confidential Information.
(b) Non-Disparagement. By accepting an Award under the Plan, and as a condition thereof, the Participant
acknowledges and agrees that he or she will not defame or publicly criticize the services, business, integrity, veracity or personal or professional reputation of the Company, including its officers,
directors, partners, executives or agents, in either a professional or personal manner at any time during or following his or her employment.
(c) Post-Employment Property. By accepting an Award under the Plan, and as a condition thereof, the Participant
agrees that any work of authorship, invention, design, discovery, development, technique, improvement, source code, hardware, device, data, apparatus, practice, process, method or other work product
whatever (whether patentable or subject to copyright, or not, and hereinafter collectively called "discovery") related to the business of the Company that the Participant, either solely or in
collaboration with others, has made or may make, discover, invent, develop, perfect, or reduce to practice during his or her employment, whether or not during regular business hours and created,
conceived or prepared on the Company's premises or otherwise shall be the sole and complete property of the Company. More particularly, and without limiting the foregoing, the Participant agrees that
all of the foregoing and any (i) inventions (whether patentable or not, and without regard to whether any patent therefor is ever sought), (ii) marks, names, or logos (whether or not
registrable as trade or service marks, and without regard to whether registration therefor is ever sought), (iii) works of authorship (without regard to whether any claim of copyright therein
is ever registered), and (iv) trade secrets, ideas, and concepts ((i) - (iv) collectively, "Intellectual Property Products") created, conceived, or prepared on the Company's premises or
otherwise, whether or not during normal business hours, shall perpetually and throughout the world be the exclusive property of the Company, as shall all tangible media (including, but not limited to,
papers, computer media of all types, and models) in which such Intellectual Property Products shall be recorded or otherwise fixed. The Participant further agrees promptly to disclose in writing and
deliver to the Company all Intellectual Property Products created during his or her engagement by the Company, whether or not during normal business hours. The Participant agrees that all works of
authorship created by the Participant during his or her engagement by the Company shall be works made for hire of which the Company is the author and owner of copyright. To the extent that any
competent decision-making authority
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should
ever determine that any work of authorship created by the Participant during his or her engagement by the Company is not a work made for hire, by accepting an Award, the Participant assigns all
right, title and interest in the copyright therein, in perpetuity and throughout the world, to the Company. To the extent that this Plan does not otherwise serve to grant or otherwise vest in the
Company all rights in any Intellectual Property Product created by the Participant during his or her engagement by the Company, by accepting an Award, the Participant assigns all right, title and
interest therein, in perpetuity and throughout the world, to the Company. The Participant agrees to execute, immediately upon the Company's reasonable request and without charge, any further
assignments, applications, conveyances or other instruments, at any time, whether or not the Participant is engaged by the Company at the time such request is made, in order to permit the Company
and/or its respective assigns to protect, perfect, register, record, maintain, or enhance their rights in any Intellectual Property Product; provided that the Company shall bear the cost of any such
assignments, applications or consequences. Upon termination of the Participant's employment by the Company for any reason whatsoever, and at any earlier time the Company so requests, the Participant
will immediately deliver to the custody of the person designated by the Company all originals and copies of any documents and other property of the Company in the Participant's possession, under the
Participant's control or to which he or she may have access.
For
purposes of this Section 15, the term "Company" shall include the Company and its Affiliates.
16. General. (a) Award Agreements. Each Award under the Plan shall be evidenced by an Award
agreement, which shall be delivered to the Participant (whether in paper or electronic medium (including
email or the posting on a web site maintained by the Company or a third party under contract with the Company)) and shall specify the terms and conditions of the Award and any rules applicable
thereto, including without limitation, the effect on such Award of the death, disability or termination of employment or service of a Participant, or of such other events as may be determined by the
Committee.
(b) Nontransferability. (i) Each Award shall be exercisable only by a Participant during the
Participant's lifetime, or, if permissible under applicable law, by the Participant's legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or an Affiliate; provided that the designation of a beneficiary shall not constitute an
assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding
the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a Participant, without
consideration, subject to such rules as the Committee may adopt consistent with any applicable Award agreement to preserve the purposes of the Plan, to: (A) any person who is a "family member"
of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act (collectively, the "Immediate Family Members");
(B) a trust solely for the benefit of the Participant and his or her Immediate Family Members; or (C) a partnership or limited liability company whose only partners or stockholders are
the Participant and his or her Immediate Family Members; or (D) any other transferee as may be approved either (I) by the Board or the Committee in its sole discretion, or (II) as
provided in the applicable Award agreement. (each transferee described in clauses (A), (B) (C) and (D) above is hereinafter referred to as a "Permitted
Transferee"); provided that the Participant gives the Committee advance written notice describing the terms and conditions of
the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan.
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(iii) The
terms of any Award transferred in accordance with the immediately preceding sentence shall apply to the Permitted Transferee and any reference in the Plan, or in
any applicable Award agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees shall not be entitled to transfer any Award, other
than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement
on an appropriate form covering the Common Shares to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award agreement, that such a
registration statement is necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or
would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) the consequences of the termination of the Participant's employment by, or services to,
the Company or an Affiliate under the terms of the Plan and the applicable Award agreement shall continue to be applied with respect to the Participant, including, without limitation, that an Option
shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award agreement.
(c) Tax Withholding. (i) A Participant shall be required to pay to the Company or any Affiliate, and the
Company or any Affiliate shall have the right and is hereby authorized to withhold, from any cash, Common Shares, other securities or other property deliverable under any Award or from any
compensation or other amounts owing to a Participant, the amount (in cash, Common Shares, other securities or other property) of any required withholding taxes (up to the maximum statutory rate under
applicable law) in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Committee or
the Company to satisfy all obligations for the payment of such withholding and taxes.
(ii) Without
limiting the generality of clause (i) above, the Committee may, in its sole discretion, permit a Participant to satisfy, in whole or in part, the
foregoing withholding liability by (A) the delivery of
Common Shares (which are not subject to any pledge or other security interest and are Mature Shares) owned by the Participant having a fair market value equal to such withholding liability or
(B) having the Company withhold from the number of Common Shares otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number of shares with a fair market
value equal to such withholding liability.
(d) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or an Affiliate,
or other person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no
obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee's determinations and interpretations with respect
thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action
taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an Affiliate, nor shall it be construed as giving any Participant any
rights to continued service on the Board. The Company or any of its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability
or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any
claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award agreement,
notwithstanding any
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provision
to the contrary in any written employment contract or other agreement between the Company and its Affiliates and the Participant, whether any such agreement is executed before, on or after
the Date of Grant.
(e) International Participants. With respect to Participants who reside or work outside of the United States of
America the Committee may in its sole discretion amend the terms of the Plan or outstanding Awards with respect to such Participants in order to conform such terms with the requirements of local law
or to obtain more favorable tax or other treatment for a Participant, the Company or its Affiliates.
(f) Designation and Change of Beneficiary. Each Participant may file with the Committee a written designation of
one or more persons as the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon his death. A Participant may, from time to
time, revoke or change his beneficiary designation without the consent of any prior beneficiary
by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant's death, and
in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his or her spouse or, if the
Participant is unmarried at the time of death, his or her estate.
(g) Termination of Employment/Service. Unless determined otherwise by the Committee at any point following such
event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment or service with the Company to employment or
service with an Affiliate (or vice-versa) shall be considered a termination of employment or service with the Company or an Affiliate; and (ii) if a Participant's employment with the Company
and its Affiliates terminates, but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status shall not be
considered a termination of employment with the Company or an Affiliate.
(h) No Rights as a Stockholder. Except as otherwise specifically provided in the Plan or any Award agreement, no
person shall be entitled to the privileges of ownership in respect of Common Shares that are subject to Awards hereunder until such shares have been issued or delivered to that person.
(i) Government and Other Regulations. (i) The obligation of the Company to settle Awards in Common Shares
or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of
any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Common Shares pursuant to an Award unless
such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to
the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied
with. The Company shall be under no obligation to register for sale under the Securities Act any of the Common Shares to be offered or sold under the Plan. The Committee shall have the authority to
provide that all certificates for Common Shares or other securities of the Company or any Affiliate delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan, the applicable Award agreement, the federal securities laws, or the rules, regulations and other requirements of the Securities and Exchange Commission,
any securities exchange or inter-dealer quotation system upon which such shares or other securities are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, and,
without
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limiting
the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add any additional terms or provisions to any Award granted under the Plan that it in its sole discretion
deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
(ii) The
Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other
market considerations would make the Company's acquisition of Common Shares from the public markets, the Company's issuance of Common Shares to the Participant, the Participant's acquisition of Common
Shares from the Company and/or the Participant's sale of Common Shares to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an
Award in accordance with the foregoing, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate fair market value of the Common Shares subject to such Award
or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise
Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of Common Shares (in the case of any other Award). Such amount shall be delivered
to the Participant as soon as practicable following the cancellation of such Award or portion thereof.
(j) Payments to Persons Other Than Participants. If the Committee shall find that any person to whom any amount
is payable under the Plan is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his estate (unless a prior claim therefor
has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to his spouse, child, relative, an institution maintaining or having custody of such
person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of
the Committee and the Company therefor.
(k) Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan
to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options or other equity-based awards otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the other hand. No provision of the Plan or
any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or
otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered
fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of
additional compensation by performance of services, they shall have the same rights as other employees under general law.
(m) Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in
acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent
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public
accountant of the Company and its Affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than himself.
(n) Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any
benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.
(o) Governing Law. The Plan shall be governed by and construed in accordance with the internal laws of the State
of New York applicable to contracts made and performed wholly within the State of New York, without giving effect to the conflict of laws provisions thereof.
(p) Severability. If any provision of the Plan or any Award or Award agreement is or becomes or is deemed to be
invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such
jurisdiction, person or entity or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(q) Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any
successor corporation or organization resulting from the merger, amalgamation, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to
substantially all of the assets and business of the Company.
(r) Code Section 409A.
(i) Notwithstanding
any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative, comply with Code
Section 409A and the interpretive guidance thereunder, including the exceptions for stock rights and short-term deferrals. The Plan shall be construed and interpreted in accordance with such
intent. Each payment under an Award shall be treated as a separate payment for purposes of Code Section 409A.
(ii) If
a Participant is a "specified employee" (as such term is defined for purposes of Code Section 409A) at the time of his or her termination of service, no
amount that is nonqualified deferred compensation subject to Code Section 409A and that becomes payable by reason of such termination of service shall be paid to the Participant (or in the
event of the Participant's death, the Participant's representative or estate) before the earlier of (x) the first business day after the date that is six months following the date of the
Participant's termination of service, and (y) within 30 days following the date of the Participant's death. For purposes of Code Section 409A, a termination of service shall be
deemed to occur only if it is a "separation from service" within the meaning of Code Section 409A, and references in the Plan and any Award agreement to "termination of service" or similar
terms shall mean a "separation from service." If any Award is or becomes subject to Code Section 409A, unless the applicable Award agreement provides otherwise, such Award shall be payable upon
the Participant's "separation from service" within the meaning of Code Section 409A. If any Award is or becomes subject to Code Section 409A and if payment of such Award would be
accelerated or otherwise triggered under a Change in Control, then the definition of Change in Control shall be deemed modified, only to the extent necessary to avoid the imposition of an excise tax
under Code Section 409A, to mean a "change in control event" as such term is defined for purposes of Code Section 409A.
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(y) Any
adjustments made pursuant to Section 12 to Awards that are subject to Code Section 409A shall be made in compliance with the requirements of Code
Section 409A, and any adjustments made pursuant to Section 12 to Awards that are not subject to Code Section 409A shall be made in such a
manner as to ensure that after such adjustment, the Awards either (x) continue not to be subject to Code Section 409A or (y) comply with the requirements of Code
Section 409A.
(t) Expenses; Gender; Titles and Headings. The expenses of administering the Plan shall be borne by the Company
and its Affiliates. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in the Plan are for convenience of reference only,
and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.
(u) Other Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of
and/or the receipt of Common Shares under an Award, that the Participant execute lock-up, shareholder or other agreements, as it may determine in its sole and absolute discretion.
(v) Payments. Participants shall be required to pay, to the extent required by applicable law, any amounts
required to receive Common Shares under any Award made under the Plan.
(w) Erroneously Awarded Compensation. All Awards shall be subject (including on a retroactive basis) to
(i) any clawback, forfeiture or similar incentive compensation recoupment policy established from time to time by the Company, including, without limitation, any such policy established to
comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, (ii) applicable law (including, without limitation, Section 304 of the Sarbanes-Oxley Act and
Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), and/or (iii) the rules and regulations of the applicable securities exchange or inter-dealer quotation
system on which the Common Shares are listed or quoted, and such requirements shall be deemed incorporated by reference into all outstanding Award agreements.
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Annex F
1585 Broadway
New York, NY 10036
March 1,
2020
Board
of Directors
WillScot Corporation
901 South Bond Street, Suite 600
Baltimore MD, 21231
Members
of the Board:
We
understand that Mobile Mini, Inc. ("Monet"), WillScot Corporation ("Warhol") and Picasso Merger Sub, Inc., a wholly owned direct subsidiary of Warhol ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger, substantially in the form of the draft dated February 29, 2020 (the "Merger Agreement"), which provides, among other things, for the
merger (the "Merger") of Merger Sub with and into Monet. Pursuant to the Merger, Monet will become a wholly owned direct subsidiary of Warhol, and each issued and outstanding share of common stock,
par value $0.01 per share, of Monet (the "Company Common Stock"), other than shares held by Monet or any subsidiary of Monet as treasury stock, will be converted into the right to receive 2.4050 (the
"Exchange Ratio") fully paid and nonassessable shares of common stock, par value $0.0001 per share, of Warhol (the "Warhol Common Stock"), subject to adjustment in certain circumstances. The terms and
conditions of the Merger are more fully set forth in the Merger Agreement.
You
have asked for our opinion as to whether the Exchange Ratio pursuant to the Merger Agreement is fair from a financial point of view to Warhol.
For
purposes of the opinion set forth herein, we have:
-
1)
-
Reviewed
certain publicly available financial statements and other business and financial information of Monet and Warhol, respectively;
-
2)
-
Reviewed
certain internal financial statements and other financial and operating data concerning Monet and Warhol, respectively;
-
3)
-
Reviewed
certain financial projections prepared by the managements of Monet and Warhol, respectively;
-
4)
-
Reviewed
information relating to certain strategic, financial and operational benefits anticipated from the Merger, prepared by the managements of Monet and Warhol,
respectively;
-
5)
-
Discussed
the past and current operations and financial condition and the prospects of Monet, including information relating to certain strategic, financial and
operational benefits anticipated from the Merger, with senior executives of Monet;
-
6)
-
Discussed
the past and current operations and financial condition and the prospects of Warhol, including information relating to certain strategic, financial and
operational benefits anticipated from the Merger, with senior executives of Warhol;
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7)
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Reviewed
the pro forma impact of the Merger on Warhol's earnings per share, cash flow, consolidated capitalization and certain financial ratios;
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8)
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Reviewed
the reported prices and trading activity for Monet Common Stock and Warhol Common Stock;
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9)
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Compared
the financial performance of Monet and Warhol and the prices and trading activity of Monet Common Stock and Warhol Common Stock with that of certain other
publicly-traded companies comparable with Monet and Warhol, respectively, and their securities;
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10)
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Reviewed
the financial terms, to the extent publicly available, of certain comparable acquisition transactions;
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11)
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Participated
in discussions and negotiations among representatives of Monet and Warhol and certain parties and their financial and legal advisors;
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12)
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Reviewed
the Merger Agreement, the draft commitment letter from certain lenders substantially in the form of the draft dated February 29, 2020 (the
"Commitment Letter") and certain related documents; and
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13)
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Reviewed
such other documents, performed such other analyses and considered such other factors as we have deemed appropriate.
We
have assumed and relied upon, without independent verification, the accuracy and completeness of the information that was publicly available or supplied or otherwise made available to
us by Monet and Warhol, and formed a substantial basis for this opinion. With respect to the financial projections, including information relating to certain strategic, financial and operational
benefits anticipated from the Merger, we have assumed that they have been reasonably prepared on bases reflecting the best currently available estimates and judgments of the respective managements of
Monet and Warhol of the future financial performance of Monet and Warhol. In addition, we have assumed that the Merger will be consummated in accordance with the terms set forth in the Merger
Agreement without any waiver, amendment or delay of any terms or conditions, including, among other things, that the Merger will be treated as a tax-free reorganization, pursuant to the Internal
Revenue Code of 1986, as amended, that Warhol will obtain financing in accordance with the terms set forth in the Commitment Letter, and that the definitive Merger Agreement will not differ in any
material respect from the draft thereof furnished to us. Morgan Stanley has assumed that in connection with the receipt of all the
necessary governmental, regulatory or other approvals and consents required for the proposed Merger, no delays, limitations, conditions or restrictions will be imposed that would have a material
adverse effect on the contemplated benefits expected to be derived in the proposed Merger. We are not legal, tax or regulatory advisors. We are financial advisors only and have relied upon, without
independent verification, the assessment of Warhol and Monet and their legal, tax, or regulatory advisors with respect to legal, tax or regulatory matters. We express no opinion with respect to the
fairness of the amount or nature of the compensation to any of Monet's officers, directors or employees, or any class of such persons, relative to the Exchange Ratio to be paid to the holders of
shares of Monet Common Stock in the transaction. We have not made any independent valuation or appraisal of the assets or liabilities of Monet or Warhol, nor have we been furnished with any such
valuations or appraisals. Our opinion is necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to us as of, the date hereof.
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We
have acted as financial advisor to the Board of Directors of Warhol in connection with this transaction and will receive a fee for our services, a substantial portion of which is
contingent upon the closing of the Merger. In addition, Morgan Stanley may receive customary fees associated with providing event financing upon the closing of the Merger. In the two years prior to
the date hereof, we have provided financial advisory and financing services for Warhol and TDR Capital LLP ("TDR"), which as of the date hereof, beneficially owns approximately 45% of Warhol's
class A common stock and 100% of Warhol's class B common stock, in each case, through its affiliate Sapphire Holding S.a.r.l., and have received fees in connection with such services.
Morgan Stanley may also seek to provide financial advisory and financing services to Warhol, TDR and Monet and their respective affiliates in the future and would expect to receive fees for the
rendering of these services. In addition, Morgan Stanley, its affiliates, directors or officers, including individuals working with Warhol in connection with this transaction, may have committed and
may commit in the future to invest in private equity funds managed by TDR.
Please
note that Morgan Stanley is a global financial services firm engaged in the securities, investment management and individual wealth management businesses. Our securities business
is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, prime brokerage, as well as providing investment banking, financing and
financial advisory services. Morgan Stanley, its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance
positions, and may trade or otherwise
structure and effect transactions, for their own account or the accounts of its customers, in debt or equity securities or loans of Warhol, TDR, Monet, or any other company, or any currency or
commodity, that may be involved in this transaction, or any related derivative instrument.
This
opinion has been approved by a committee of Morgan Stanley investment banking and other professionals in accordance with our customary practice. This opinion is for the information
of the Board of Directors of Warhol and may not be used for any other purpose or disclosed without our prior written consent, except that a copy of this opinion may be included in its entirety in any
filing Warhol is required to make with the Securities and Exchange Commission in connection with this transaction if such inclusion is required by applicable law and, in such case, a summary of such
opinion may also be included in such proxy. In addition, this opinion does not in any manner address the prices at which Warhol Common Stock will trade following consummation of the Merger or at any
time and Morgan Stanley expresses no opinion or recommendation as to how the shareholders of Warhol and Monet should vote at the shareholders' meetings to be held in connection with the Merger.
Based
on and subject to the foregoing, we are of the opinion on the date hereof that the Exchange Ratio pursuant to the Merger Agreement is fair from a financial point of view to Warhol.
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Very truly yours,
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MORGAN STANLEY & CO. LLC
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By:
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/s/ DANIEL S. BLANK
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Name: Daniel S. Blank
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Title: Managing Director
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Annex G
March 1,
2020
Special
Committee of the Board of Directors
WillScot Corporation
901 South Bond Street, Suite 600
Baltimore, Maryland 21231
Members
of the Special Committee:
Stifel,
Nicolaus & Company, Incorporated ("Stifel" or "we") has been advised that WillScot Corporation ("WillScot") is considering entering into an Agreement and Plan of Merger
(the "Merger Agreement") with Mobile Mini, Inc. ("Mobile Mini"), pursuant to which, among other things, Picasso Merger Sub, Inc., a wholly-owned subsidiary of WillScot will merge with
and into Mobile Mini (the "Merger"), each outstanding share of common stock, par value $0.01 per share, of Mobile Mini ("Mobile Mini Common Stock"), other than the Excluded Shares (as defined below),
will be converted into the right to receive 2.405 (the "Exchange Ratio") shares of common stock, par value $0.0001 per share, of WillScot ("WillScot Common Stock"), and Mobile Mini will be the
surviving corporation. "Excluded Shares" shall be defined as shares of Mobile Mini Common Stock held by Mobile Mini as treasury stock or owned by any subsidiary of Mobile Mini. The terms and
conditions of the Merger are more fully set forth in the Merger Agreement.
We
have further been advised that the Board of Directors of WillScot (the "Board") has created a Special Committee (the "Special Committee") for purposes of investigating and negotiating
the terms of the Merger and determining whether or not WillScot should proceed with the Merger. We have been advised that all of the members of the Special Committee are independent directors who are
not members of the management of WillScot and who do not have any relationships with Mobile Mini or otherwise that would impact their independence regarding the Merger. The Special Committee has
requested Stifel's opinion as to whether, as of the date hereof, the Exchange Ratio provided for in the Merger pursuant to the Merger Agreement is fair to WillScot, from a financial point of view (the
"Opinion").
In
rendering our Opinion, we have, among other things:
(i) discussed
the Merger and related matters with WillScot's counsel and reviewed a draft dated February 29, 2020 of the Merger Agreement;
(ii) reviewed
publicly available business and financial information relating to WillScot, including audited consolidated financial statements contained in its Annual Reports
filed with the Securities and Exchange Commission (the "SEC") on Form 10-K;
(iii) reviewed
publicly available business and financial information relating to Mobile Mini, including audited consolidated financial statements contained in its Annual
Reports filed with the SEC on Form 10-K;
(iv) reviewed
and discussed with WillScot management certain other publicly available information including financial and operating information with respect to the business,
operations and prospects of each of WillScot and Mobile Mini;
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Special Committee of the Board of Directors of WillScot Corporation
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March 1, 2020
(v) reviewed
certain non-publicly available information concerning WillScot, including a draft of its Annual Report to be filed with the SEC on Form 10-K for the
fiscal year ended December 31, 2019 and internal financial analyses and forecasts prepared by its management and held discussions with WillScot's senior management regarding recent developments
(the "WillScot Projections");
(vi) reviewed
certain non-publicly available information concerning Mobile Mini, including internal financial analyses and forecasts prepared by its management and provided
to us by WillScot's management and held discussions with WillScot's and Mobile Mini's senior management regarding recent developments (the "Mobile Mini Projections");
(vii) reviewed
the potential pro forma financial impact of the Merger on the future financial performance of WillScot;
(viii) reviewed
the relative financial contributions of WillScot and Mobile Mini to the future financial performance of the combined company on a pro forma basis;
(ix) reviewed
and analyzed certain publicly available information concerning the terms of selected merger and acquisition transactions that we deemed relevant to our
analysis;
(x) reviewed
and analyzed certain publicly available financial and stock market data relating to selected other public companies that we deemed relevant to our analysis;
(xi) reviewed
the reported prices and trading activity of the WillScot Common Stock and the Mobile Mini Common Stock;
(xii) conducted
such other financial studies, analyses and investigations and considered such other information as we deemed necessary or appropriate for purposes of our
Opinion;
(xiii) reviewed
a certificate addressed to us from senior management of WillScot which contains, among other things, representations regarding the accuracy of the
information, data and other materials (financial or otherwise) provided to, or discussed with, us by or on behalf of WillScot; and
(xiv) took
into account our assessment of general economic, market and financial conditions and our experience in other transactions, as well as our experience in securities
valuations and our knowledge of WillScot's and Mobile Mini's industry generally.
In
rendering our Opinion, we have relied upon and assumed, without independent verification, the accuracy and completeness of all of the financial and other information that was provided
to Stifel by or on behalf of WillScot or Mobile Mini, or that was otherwise reviewed by Stifel, and have not assumed any responsibility for independently verifying any of such information. With
respect to the WillScot Projections, we have assumed, at the direction of WillScot management, that they were reasonably prepared in good faith on the basis reflecting the best currently available
estimates and judgments of the management of WillScot as to the future operating and financial performance of WillScot, and that they provided a reasonable basis upon which we could form our Opinion.
With respect to the Mobile Mini Projections, we have assumed, at the direction of WillScot management, that they were reasonably prepared in good faith on the basis reflecting the best currently
available estimates and judgments of the management of Mobile Mini as to the future operating and financial
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Special Committee of the Board of Directors of WillScot Corporation
Page 3
March 1, 2020
performance
of Mobile Mini, and that they provided a reasonable basis upon which we could form our Opinion. Such forecasts and projections were not prepared with the expectation of public disclosure.
All such projected financial information is based on numerous variables and assumptions that are inherently uncertain, including, without limitation, factors related to general economic and
competitive conditions. Accordingly, actual results could vary significantly from those set forth in such projected financial information. Stifel has relied on this projected information without
independent verification or
analyses and does not in any respect assume any responsibility for the accuracy or completeness thereof.
We
also relied upon and assumed, without independent verification, that there were no material changes in the assets, liabilities, financial condition, results of operations, business or
prospects of either WillScot or Mobile Mini since the date of the last financial statements of each company made available to us, and that there is no information or any facts that would make any of
the information reviewed by us incomplete or misleading. We did not make or obtain any independent evaluation, appraisal or physical inspection of either WillScot's or Mobile Mini's assets or
liabilities, nor have we been furnished with any such evaluation or appraisal. Estimates of values of companies and assets do not purport to be appraisals or necessarily reflect the prices at which
companies or assets may actually be sold. Because such estimates are inherently subject to uncertainty, Stifel assumes no responsibility for their accuracy.
We
have assumed, with your consent, that there are no factors that would delay or subject to any adverse conditions any necessary regulatory or governmental approval and that all
conditions to the Merger will be satisfied and not waived. In addition, we have assumed that the definitive Merger Agreement and the definitive annual report to be filed by WillScot with the SEC on
Form 10-K for its fiscal year ended December 31, 2019 will not differ materially from the drafts we reviewed. We have also assumed that the Merger will be consummated substantially on
the terms and conditions described in the Merger Agreement, without any waiver of material terms or conditions by WillScot or any other party and without any adjustment to the Exchange Ratio, and that
obtaining any necessary regulatory approvals or satisfying any other conditions for consummation of the Merger will not have an adverse effect on WillScot, Mobile Mini or the Merger. We have also
assumed, with the consent of the Special Committee, that the Merger will qualify as a tax-free transaction. We have assumed that the Merger will be consummated in a manner that complies with the
applicable provisions of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and all other applicable federal and state statutes, rules and regulations. We have
further relied upon the fact that WillScot obtained the advice of its counsel, independent accountants and other advisors (other than Stifel) as to all legal, financial reporting, tax, accounting and
regulatory matters with respect WillScot, the Merger and the Merger Agreement, and assumed that all such advice was accurate.
Our
Opinion is limited to whether the Exchange Ratio is fair to WillScot, from a financial point of view, and does not address any other terms, aspects or implications of the Merger
including, without limitation, the form or structure of the Merger, any consequences of the Merger on WillScot, its stockholders, creditors or otherwise, or any terms, aspects or implications of
(including any consideration payable under) any voting, support, stockholder or other agreements, arrangements or understandings contemplated or entered into in connection with the Merger or
otherwise. Our Opinion also does not consider, address or include: (i) any other strategic alternatives currently (or which have been or may be) contemplated by the Special Committee, the Board
or WillScot; (ii) the legal, tax or
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Special Committee of the Board of Directors of WillScot Corporation
Page 4
March 1, 2020
accounting
consequences of the Merger on WillScot or the holders of shares of WillScot Common Stock; (iii) the fairness of the amount or nature of any compensation to any of WillScot's
officers, directors or employees, affiliates or class of such persons, relative to the consideration to be received by the holders of WillScot's securities; (iv) the effect of the Merger on, or
the fairness of the consideration to be received by, holders of any class of securities of WillScot other than the shares of WillScot Common Stock, or any class of securities of any other party to any
transaction contemplated
by the Merger Agreement; or (v) any advice or opinions provided by any other advisor to WillScot or Mobile Mini. Furthermore, we are not expressing any opinion herein as to the prices, trading
range or volume at which WillScot's or Mobile Mini's securities (including the WillScot Common Stock and the Mobile Mini Common Stock) will trade following public announcement or consummation of the
Merger.
We
have not been requested to, and did not, (a) initiate or participate in any discussions or negotiations with, or solicit any indications of interest from, third parties with
respect to the Merger, the securities, assets, businesses or operations of WillScot, Mobile Mini or any other party, or any alternatives to the Merger, (b) negotiate the terms of the Merger, or
(c) advise the Special Committee, the Board or any other party with respect to alternatives to the Merger. Our Opinion is necessarily based on economic, market, financial and other conditions
as they exist on, and on the information made available to us by or on behalf of WillScot, Mobile Mini or their respective advisors, or information otherwise reviewed by Stifel, as of the date of this
Opinion. It is understood that subsequent developments may affect the conclusion reached in this Opinion and that Stifel does not have any obligation to update, revise or reaffirm this Opinion. Our
Opinion is for the information of, and directed to, the Special Committee (in its capacity as such) for its information and assistance in connection with its consideration of the financial terms of
the Merger and may not be used for any other purpose without our prior written consent. Our Opinion does not constitute a recommendation to the Special Committee or the Board as to how the Special
Committee or the Board should vote on the Merger or to any shareholder of WillScot or Mobile Mini as to how any such shareholder should vote at any shareholders' meeting at which the Merger is
considered, or whether or not any shareholder of WillScot or Mobile Mini should enter into a voting, shareholders', or affiliates' agreement with respect to the Merger, or exercise any dissenters' or
appraisal rights that may be available to such shareholder. In addition, the Opinion does not compare the relative merits of the Merger with any other alternative transactions or business strategies
which may have been available to WillScot and does not address the underlying business decision of the Board, the Special Committee or WillScot to proceed with or effect the Merger. We have assumed
that the WillScot Common Stock to be issued in the Merger to the shareholders of Mobile Mini will be listed on the NASDAQ Capital Market.
Stifel,
as part of its investment banking services, is regularly engaged in the independent valuation of businesses and securities in connection with mergers, acquisitions,
underwritings, sales and distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. We will receive a fee upon the delivery of this
Opinion that is not contingent upon consummation of the Merger. We will not receive any other significant payment or compensation contingent upon the successful consummation of the Merger. In
addition, WillScot has agreed to indemnify us for certain liabilities arising out of our engagement. There are no material relationships that existed during the two years prior to the date of this
Opinion or that are mutually understood to be contemplated in which any compensation was received or is intended to be received as a result of
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Special Committee of the Board of Directors of WillScot Corporation
Page 5
March 1, 2020
the
relationship between Stifel and any party to the Merger. Stifel may seek to provide investment banking services to WillScot or its affiliates in the future, for which we would seek customary
compensation. In the ordinary course of business, Stifel and our clients may transact in the equity securities of each of WillScot and Mobile Mini and may at any time hold a long or short position in
such securities.
Stifel's
Fairness Opinion Committee has approved the issuance of this Opinion. Our Opinion may not be published or otherwise used or referred to, nor shall any public reference to Stifel
be made, without our prior written consent, except in accordance with the terms and conditions of Stifel's engagement letter agreement with WillScot.
Based
upon and subject to the foregoing, we are of the opinion that, as of the date hereof, the Exchange Ratio provided for in the Merger pursuant to the Merger Agreement is fair to
WillScot, from a financial point of view.
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Very truly yours,
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/s/ Stifel, Nicolaus & Company, Incorporated
STIFEL, NICOLAUS & COMPANY, INCORPORATED
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Annex H
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745 Seventh Avenue
New York, NY 10019
United States
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CONFIDENTIAL
March 1, 2020
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Board
of Directors
Mobile Mini, Inc.
4646 E. Van Buren Street, Suite 400
Phoenix, Arizona 85008
Members
of the Board of Directors:
We
understand that Mobile Mini, Inc. (the "Company") intends to enter into a transaction (the "Proposed Transaction") with WillScot Corporation, a Delaware corporation ("Parent"),
and Picasso Merger Sub, Inc., a Delaware corporation and wholly owned direct subsidiary of Parent ("Merger Sub"), pursuant to which, among other things, Merger Sub will merge with and into the
Company, with the Company being the surviving corporation (the "Merger"). We further understand that, at the effective time of the Merger, among other things, each share of common stock, par value
$0.01 per share, of the Company ("Company Common Stock") issued and outstanding immediately prior to the effective time of the Merger, other than any Excluded Shares (as defined in the Agreement (as
defined below)), will be converted into the right to receive 2.4050 (the "Exchange Ratio") fully paid and nonassessable shares of common stock, par value $0.0001 per share, of Parent ("Parent Common
Stock"). Additionally, immediately prior to the effective time of the Merger, (i) each outstanding share of common stock of Williams Scotsman Holdings Corp. owned by Sapphire Holding
S.à r.l., the principal stockholder of Parent ("Sapphire"), will be exchanged (the "Share Exchange") for 1.3261 shares of Class A common stock, par value $0.0001 per share, of
Parent ("Class A Shares") and, upon the Share Exchange, all outstanding shares of Class B common stock, par value $0.0001 per share, of Parent will automatically be cancelled for no
consideration, and (ii) Parent will amend and restate its certificate of incorporation to reclassify Class A Shares into Parent Common Stock and to provide for one class of common stock
of Parent. The terms and conditions of the Proposed Transaction are set forth in more detail in that certain Agreement and Plan of Merger, dated as of March 1, 2020, by and among Parent, Merger
Sub and the Company (the "Agreement"). The summary of the Proposed Transaction set forth above is qualified in its entirety by the terms of the Agreement.
We
have been requested by the Board of Directors of the Company to render our opinion with respect to the fairness, from a financial point of view, to the holders (other than Parent and
its affiliates) of shares of Company Common Stock (other than Excluded Shares) of the Exchange Ratio to be offered to such stockholders in the Proposed Transaction. We have not been requested to opine
as to, and our
opinion does not in any manner address, the Company's underlying business decision to proceed with or effect the Proposed Transaction or the likelihood of consummation of the Proposed Transaction. In
addition, we express no opinion on, and our opinion does not in any manner address, the fairness of the amount or the nature of the Share Exchange or any compensation to any officers, directors or
employees of any parties to the Proposed Transaction, or any class of such persons, relative to the consideration to be offered to the holders (other than Parent and its affiliates) of shares of
Company Common Stock (other than Excluded Shares) in the Proposed Transaction. Our opinion does not address the relative merits of the Proposed Transaction as compared to any other transaction or
business strategy in which the Company might engage.
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In
arriving at our opinion, we reviewed and analyzed: (1) the Agreement and the specific terms of the Proposed Transaction; (2) publicly available information concerning
the Company that we believe to be relevant to our analysis, including the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2019; (3) publicly available
information concerning Parent that we believe to be relevant to our analysis, including Parent's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, Parent's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, and a draft, received on February 9, 2020, of
Parent's Annual Report on Form 10-K for the fiscal year ended December 31, 2019; (4) financial and operating information with respect to the business, operations and prospects of
the Company furnished to us by the Company, including financial projections of the Company prepared by management of the Company and furnished to us by the Company (the "Company Projections");
(5) financial and operating information with respect to the business, operations and prospects of Parent furnished to us by Parent or the Company, including financial projections of Parent
prepared by management of Parent and confirmed by and furnished to us by the Company (the "Parent Projections"); (6) the projected pro forma impact of the Proposed Transaction on the future
financial performance of the combined company, including cost synergies (the "Expected Synergies") and other strategic benefits expected by the management of the Company and the management of Parent
to result from a combination of the businesses, furnished to us by the Company (the "Combined Projections"); (7) published estimates of independent research analysts with respect to the future
financial performance of each of the Company and Parent and price targets of each of the Company Common Stock and Parent Common Stock; (8) the relative projected contributions of the Company
and Parent to the future financial performance of the combined company on a pro forma basis following the Proposed Transaction; (9) a recent trading history of each of the Company Common Stock
and the Parent Common Stock and a comparison of those trading histories with each other and, with respect to the Company Common Stock, the trading histories of other companies that we deemed relevant;
and (10) a comparison of the financial terms of the Proposed Transaction with the financial terms of certain other transactions that we deemed relevant. In addition, we have had discussions
with the managements of the Company and Parent concerning their respective businesses, operations, assets, liabilities, financial condition and prospects and with the management of the Company
concerning the strategic rationale for the Proposed Transaction, and we have undertaken such other studies, analyses and investigations as we deemed appropriate.
In
arriving at our opinion, we have assumed and relied upon the accuracy and completeness of the financial and other information used by us without any independent verification of such
information
(and have not assumed responsibility or liability for any independent verification of such information) and have further relied upon the assurances of the managements of the Company and Parent that
they are not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Company Projections, the Parent Projections and the Combined
Projections, upon the advice of the Company, we have assumed that (i) such projections have been reasonably prepared on a basis reflecting the best currently available estimates and judgments
of the management of the Company as to the future financial performance of the Company, Parent and the combined company, respectively, and (ii) the Company, Parent and the combined company,
respectively, will or would (as applicable) perform in accordance with such projections. Furthermore, upon the advice of the Company, we have assumed that the amounts and timing of the Expected
Synergies are reasonable and that the Expected Synergies will be realized in accordance with such estimates. We assume no responsibility for and we express no view as to any such projections or
estimates or the assumptions on which they are based. In arriving at our opinion, we have not conducted a physical inspection of the properties and facilities of the Company or Parent and have not
made or obtained any evaluations or appraisals of the assets or liabilities of the Company or Parent. In addition, you have not authorized us to solicit, and we have not solicited, any indications of
interest from any third party with respect to the purchase of all or a part of the Company's business. Our
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opinion
necessarily is based upon market, economic and other conditions as they exist on, and can be evaluated as of, the date of this letter. We assume no responsibility for updating or revising our
opinion based on events or circumstances that may occur after the date of this letter. We express no opinion as to (i) the prices at which shares of Company Common Stock or shares of Parent
Common Stock would trade following the announcement of the Proposed Transaction or (ii) the potential effects of the volatility currently being experienced in the credit, financial and stock
markets on shares of Company Common Stock or shares of Parent Common Stock or the Proposed Transaction. Our opinion should not be viewed as providing any assurance that the market value of the shares
of Parent Common Stock to be held by the former holders of shares of Company Common Stock after the consummation of the Proposed Transaction will be in excess of the market value of the shares of
Company Common Stock owned by such stockholders at any time prior to the announcement or consummation of the Proposed Transaction.
We
have assumed that the executed Agreement will conform in all material respects to the last draft reviewed by us. In addition, we have assumed the accuracy of the representations and
warranties contained in the Agreement and all agreements related thereto. We have also assumed, upon the advice of the Company, that all material governmental, regulatory and third party approvals,
consents and releases for the Proposed Transaction will be obtained within the constraints contemplated by the Agreement and that the Proposed Transaction will be consummated in accordance with the
terms of the Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. We do not express any opinion as to any tax or other consequences that might
result from the Proposed Transaction, nor does our opinion address any legal, tax, regulatory or accounting matters, as to which we understand that the Company has obtained such advice as it deemed
necessary from qualified professionals.
Based
upon and subject to the foregoing, we are of the opinion as of the date hereof that, from a financial point of view, the Exchange Ratio to be offered to the holders (other than
Parent and its affiliates) of shares of Company Common Stock (other than Excluded Shares) in the Proposed Transaction is fair to such stockholders.
We
have acted as financial advisor to the Company in connection with the Proposed Transaction and will receive a fee for our services, a portion of which is payable upon rendering this
opinion and a substantial portion of which is contingent upon the consummation of the Proposed Transaction. In addition, the Company has agreed to reimburse a portion of our expenses and indemnify us
for certain liabilities that may arise out of our engagement. We have performed various investment banking services for the Company, Parent and TDR and certain of its affiliates and portfolio
companies in the past, and are currently providing such services and expect to perform such services in the future, and have received, and expect to receive, customary fees for such services.
Specifically, in the past two years, we have performed the following investment banking services: (i) for the Company, in March 2019, participated as a joint lead arranger and joint bookrunner
in a refinancing of the Company's existing asset based loan ("ABL") revolving credit facility; and (ii) for Parent, (1) in August 2018, participated as a joint lead
arranger and joint bookrunner in a refinancing of Parent's existing ABL revolving credit facility, (2) in August 2018, acted as bookrunner on Parent's $500 million notes offering,
(3) in July 2018, acted as lead left bookrunner on Parent's registered equity offering and (4) in June 2018, acted as financial advisor to Parent in connection with Parent's acquisition
of Modular Space Holdings, Inc. Further, affiliates of ours are performing the following financial services: (1) acting as a lender under the Company's existing ABL revolving credit
facility; and (2) acting as lender under Parent's existing ABL revolving credit facility.
In
addition, we and our affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to TDR and certain of its affiliates and
portfolio companies and have received or in the future may receive customary fees for rendering such services, including (i) having acted or acting as financial advisor to TDR and certain of
its portfolio companies
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and
affiliates in connection with certain mergers and acquisition transactions; (ii) having acted or acting as arranger, bookrunnner and/or lender for TDR and certain of its portfolio companies
and affiliates in connection with the financing for various acquisition transactions; and (iii) having acted or acting as underwriter, initial purchaser and placement agent for various equity
and debt offerings undertaken by TDR and certain of its portfolio companies and affiliates. In addition, an affiliate of ours is acting as a lender under the existing margin loan of Sapphire.
Barclays
Capital Inc., its subsidiaries and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other
financial and non-financial services. In the ordinary course of our business, we and our affiliates may actively trade and effect
transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of the Company and Parent for our own account
and for the accounts of our customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.
This
opinion, the issuance of which has been approved by our Fairness Opinion Committee, is for the use and benefit of the Board of Directors of the Company and is rendered to the Board
of Directors in connection with its consideration of the Proposed Transaction. This opinion is not intended to be and does not constitute a recommendation to any holder of shares of Company Common
Stock of the Company as to how such stockholder should vote with respect to the Proposed Transaction.
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Very truly yours,
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/s/ BARCLAYS CAPITAL INC.
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BARCLAYS CAPITAL INC.
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Annex I
PERSONAL AND CONFIDENTIAL
March 1,
2020
Board
of Directors
Mobile Mini, Inc.
4646 E. Van Buren Street, Suite 400
Phoenix, Arizona 85008
Ladies
and Gentlemen:
You
have requested our opinion as to the fairness from a financial point of view to the holders (other than WillScot Corporation ("WillScot") and its affiliates) of the outstanding
shares of common stock, par value $0.01 per share (the "Shares"), of Mobile Mini, Inc. (the "Company") of the exchange ratio of 2.4050 shares of common stock, par value $0.0001 per share of
WillScot (the "WillScot Common Stock"), to be paid for each Share, other than any Excluded Shares (as defined in the Agreement (as defined below)) (the "Exchange Ratio"), pursuant to the Agreement and
Plan of Merger, dated as of March 1, 2020 (the "Agreement"), by and among WillScot, Picasso Merger Sub, Inc., a direct wholly owned subsidiary of WillScot, and the Company. Immediately
prior to the Effective Time (as defined in the Agreement), (i) each outstanding share of common stock of Williams Scotsman Holdings Corp. owned by Sapphire Holding S.à r.l., a
significant shareholder of WillScot ("Sapphire"), will be exchanged (the "Share Exchange") for 1.3261 shares of Class A common stock, par value $0.0001 per share, of WillScot ("Class A
Shares") and, upon the Share Exchange, all outstanding shares of Class B common stock, par value $0.0001 per share, of WillScot will automatically be cancelled for no consideration, and
(ii) WillScot will amend and restate its certificate of incorporation to reclassify Class A Shares into WillScot Common Stock and to provide for one class of common stock of WillScot.
Goldman
Sachs & Co. LLC and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment
management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs & Co. LLC and its affiliates and employees, and funds or
other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments
in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of the Company, WillScot and any of their respective affiliates and third parties,
including Sapphire and TDR Capital LLP, an investment holding company that controls Sapphire ("TDR"), and their respective affiliates and, as applicable, portfolio companies, or any currency or
commodity that may be involved in the transaction contemplated by the Agreement (the "Transaction"). We have acted as financial advisor to the Company in connection with, and have participated in
certain of the negotiations leading to, the Transaction. We expect to receive fees for our
services in connection with the Transaction, the principal portion of which is contingent upon consummation of the Transaction, and the Company has agreed to reimburse certain of our expenses arising,
and indemnify us against certain liabilities that may arise, out of our engagement. We have provided certain financial advisory and/or underwriting services to TDR and/or its affiliates from time to
time for which our Investment Banking Division has received, and may receive, compensation, including having acted as joint bookrunner with respect to the €80 million add-on to
the Term Loan B under the leveraged loan facility of Hurtigruten ASA, a portfolio company of TDR, in November 2018; as sole bookrunner with respect to the public offering by Algeco Global
Finance plc, a subsidiary of a portfolio company of TDR, of its 6.50% Notes due 2023 and Senior Secured Floating Rate Notes due 2023 (aggregate principal amount €125,000,000) in
November 2018; as financial advisor to TDR with respect to its pending acquisition of Ei Group plc announced in July 2019; as joint bookrunner with respect to the offering by EG Global
Finance plc, a subsidiary of a portfolio company of TDR, of its
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8.50%
Secured Notes due 2025 (aggregate principal amount $635 million) and 6.25% Secured Notes due 2025 (aggregate principal amount €700 million) in October 2019; as
joint bookrunner with respect to the offering by LeasePlan Corp N.V., a portfolio company of TDR, of its 2.875% Senior Notes due 2024 (aggregate principal amount $750 million) in October
2019; and as financial advisor to EG Group Limited, a portfolio company of TDR, in connection with its acquisition of Cumberland Farms, Inc. in October 2019. We may also in the future provide
financial advisory and/or underwriting services to the Company, WillScot, TDR, Sapphire and their respective affiliates and, as applicable, portfolio companies for which our Investment Banking
Division may receive compensation. Affiliates of Goldman Sachs & Co. LLC also may have co-invested with TDR and Sapphire and their respective affiliates from time to time and may
have invested in limited partnership units of affiliates of TDR and Sapphire from time to time and may do so in the future.
In
connection with this opinion, we have reviewed, among other things, the Agreement; Annual Reports on Form 10-K of the Company for the five years ended December 31, 2019;
the Registration Statement on Form S-4 (Reg. No. 333-220356), including the prospectus contained therein, filed with the Securities and Exchange Commission by Double Eagle Acquisition
Corp. (the predecessor of WillScot) and declared effective as of November 7, 2017, in respect of its acquisition of Williams Scotsman International, Inc.; Annual Reports on
Form 10-K of WillScot, as applicable, for the three years ended December 31, 2019, and a draft, received on February 9, 2020, of the Annual Report on Form 10-K of WillScot
for the fiscal year ended December 31, 2019; certain interim reports to stockholders and Quarterly Reports on Form 10-Q of the Company and WillScot; certain other communications from the
Company and WillScot to their respective stockholders; certain publicly available research analyst reports for the Company and WillScot; certain internal financial analyses and forecasts for the
Company prepared by its management and for WillScot prepared by its management, and certain financial analyses and forecasts for WillScot pro forma for the Transaction prepared by the managements of
the Company and WillScot, in each case as approved for our use by the Company (collectively, the "Forecasts"), including certain cost synergies projected by the managements of the Company and WillScot
to result from the Transaction, as approved for our use by the Company (the "Synergies"). We have also held discussions with members of the senior managements of the Company and WillScot regarding
their assessment of the strategic rationale for, and the potential benefits of, the
Transaction and the past and current business operations, financial condition and future prospects of the Company and WillScot; reviewed the reported price and trading activity for the Shares and
shares of WillScot Common Stock; compared certain financial and stock market information for the Company and WillScot with similar information for certain other companies the securities of which are
publicly traded; reviewed the financial terms of certain recent business combinations in the portable storage solutions industry and in other industries; and performed such other studies and analyses,
and considered such other factors, as we deemed appropriate.
For
purposes of rendering this opinion, we have, with your consent, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and
other information provided to, discussed with or reviewed by, us, without assuming any responsibility for independent verification thereof. In that regard, we have assumed with your consent that the
Forecasts, including the Synergies, have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company. We have not made an
independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of the Company or WillScot or any of their
respective subsidiaries and we have not been furnished with any such evaluation or appraisal. We have assumed that all governmental, regulatory or other consents and approvals necessary for the
consummation of the Transaction will be obtained without any adverse effect on the Company or WillScot or on the expected benefits of the Transaction in any way meaningful to our analysis. We have
assumed that the Transaction will be consummated on the terms set forth in the Agreement, without the waiver or
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modification
of any term or condition the effect of which would be in any way meaningful to our analysis.
Our
opinion does not address the underlying business decision of the Company to engage in the Transaction, or the relative merits of the Transaction as compared to any strategic
alternatives that may be available to the Company; nor does it address any legal, regulatory, tax or accounting matters. We were not requested to solicit, and did not solicit, interest from other
parties with respect to an acquisition of, or other business combination with, the Company or any other alternative transaction. This opinion addresses only the fairness from a financial point of view
to the holders (other than WillScot and its affiliates) of Shares, as of the date hereof, of the Exchange Ratio pursuant to the Agreement. We do not express any view on, and our opinion does not
address, any other term or aspect of the Agreement or Transaction or any term or aspect of any other agreement or instrument contemplated by the Agreement or entered into or amended in connection with
the Transaction, including, the fairness of the Transaction to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other
constituencies of the Company; nor as to the fairness of the amount or nature of the Share Exchange or any compensation to be paid or payable to any of the officers, directors or employees of the
Company, or class of such persons, in connection with the Transaction, whether relative to the Exchange Ratio pursuant to the Agreement or otherwise. We are not expressing any opinion as to the prices
at which shares of WillScot Common Stock or the Shares will trade at any time or as to the impact of the Transaction on the solvency or viability of the
Company or WillScot or the ability of the Company or WillScot to pay their respective obligations when they come due. Our opinion is necessarily based on economic, monetary, market and other
conditions as in effect on, and the information made available to us as of, the date hereof and we assume no responsibility for updating, revising or reaffirming this opinion based on circumstances,
developments or events occurring after the date hereof. Our advisory services and the opinion expressed herein are provided for the information and assistance of the Board of Directors of the Company
in connection with its consideration of the Transaction and such opinion does not constitute a recommendation as to how any holder of Shares should vote with respect to such Transaction or any other
matter. This opinion has been approved by a fairness committee of Goldman Sachs & Co. LLC.
Based
upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Exchange Ratio pursuant to the Agreement is fair from a financial point of view to the holders
(other than WillScot and its affiliates) of Shares.
Very
truly yours,
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/s/ GOLDMAN SACHS & CO. LLC
(GOLDMAN SACHS & CO. LLC)
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I-3
create an electronic voting instruction form. available and follow the instructions. shares held in a Plan. Have your proxy card in hand when you call and then follow the John Sample 234567 234567 123,456,789,012.12345 TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. THE BOARD OF DIRECTORS RECOMMENDS YOU VOTE "FOR" PROPOSALS 1, 2 AND 3. For 0 Against 0 Abstain 0 1. To approve and adopt the Agreement and Plan of Merger, dated as of March 1, 2020 (the "Merger Agreement"), by and among WillScot Corporation ("WillScot"), Mobile Mini, Inc. ("Mobile Mini") and Picasso Merger Sub, Inc., a wholly owned subsidiary of WillScot (the "Mobile Mini Merger Proposal"). NOTE: When properly executed, this proxy will be voted as directed. If no direction is given, the proxies will vote FOR proposal 1, 2 and 3. If any other matters properly come before the meeting, the proxies will vote as the Board may recommend. 0 0 0 2. To approve, by advisory (non-binding) vote, certain compensation arrangements that may be paid or become payable to Mobile Mini's named executive officers in connection with the merger contemplated by the Merger Agreement. To approve the adjournment of the Mobile Mini 0 0 0 3. special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Mobile Mini special meeting to approve the Mobile Mini Merger Proposal. Yes 0 No 0 Please indicate if you plan to attend this meeting Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date 02 0000000000 1 OF 1 1 2 0000468394_1 R1.0.1.18 SHARES CUSIP # JOB #SEQUENCE # VOTE BY INTERNET - www.proxyvote.com Before the Mobile Mini special meeting - Go to www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information. Vote by 11:59 P.M. ET on June 23, 2020 for shares held directly and by 11:59 P.M. ET on June 21, 2020 for shares held in a Plan. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to During the Mobile Mini special meeting - Go to www.virtualshareholdermeeting.com/MINI2020SM You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow --> [xxxx xxxx xxxx xxxx] VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions. Vote by 11:59 P.M. ET on June 23, 2020 for shares held directly and by 11:59 P.M. ET on June 21, 2020 for instructions. 1234567 1234567VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. NAME THE COMPANY NAME INC. - COMMON THE COMPANY NAME INC. - CLASS A THE COMPANY NAME INC. - CLASS B THE COMPANY NAME INC. - CLASS C THE COMPANY NAME INC. - CLASS D THE COMPANY NAME INC. - CLASS E THE COMPANY NAME INC. - CLASS F THE COMPA N Y NAME INC. - 401 K CONTROL # → SHARES123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 123,456,789,012.12345 x PAGE1 OF 2 MOBILE MINI, INC. 4646 E. VAN BUREN STREET SUITE 400 PHOENIX, AZ 85008 Investor Address Line 1 Investor Address Line 2 Investor Address Line 3 Investor Address Line 4 Investor Address Line 5 8 8 8 1 1234 ANYWHERE STREET ANY CITY, ON A1A 1A1 234567 234567 234567
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting: The S4 statement is/are available at www.proxyvote.com MOBILE MINI, INC. Special Meeting of Stockholders June 24, 2020 at 9:00 AM Phoenix local time THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF MOBILE MINI, INC. ("MOBILE MINI") FOR USE ONLY AT THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 24, 2020 AND AT ANY POSTPONEMENT OR ADJOURNMENT THEREOF. The undersigned appoints Kelly Williams, Van A. Welch and Christopher J. Miner, and each of them, as proxies, each with full power of substitution, on behalf and in the name of the undersigned, to represent the undersigned at the special meeting of stockholders of Mobile Mini to be held on June 24, 2020, via live webcast at www.virtualshareholdermeeting.com/ MINI2020SM (and at any adjournment or postponement thereof), and authorizes them to vote at such meeting (as designated on the reverse side of this form) all shares of common stock of Mobile Mini held of record by the undersigned at the close of business on May 1, 2020. IF NO OTHER INDICATION IS MADE ON THE REVERSE SIDE OF THIS FORM, THE PROXIES WILL VOTE FOR PROPOSALS 1, 2 AND 3. IF ANY OTHER MATTERS PROPERLY COME BEFORE THE MEETING, THE PROXIES WILL VOTE AS THE BOARD MAY RECOMMEND. This proxy is revocable and the undersigned may revoke it at any time prior to the Mobile Mini special meeting by delivering a properly executed, later-dated proxy (including an Internet or telephone vote) or by voting by ballot via live webcast at the Mobile Mini special meeting. The undersigned hereby acknowledges receipt of a notice of special meeting of stockholders of Mobile Mini called for June 24, 2020 and the proxy statement for the Mobile Mini special meeting prior to the signing of this proxy. PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE. See reverse for voting instructions 0000468394_2 R1.0.1.18
