February 19, 2021
Page 10 of 11
As used in this Amended and Restated Engagement Letter, a Transaction means any of a Company Sale, an IPO, a Capital Raise or a Follow-On Offering. It is contemplated that FT Partners engagement may involve a series of transactions; each such transaction shall constitute a Transaction entitling FT Partners to a separate Transaction Fee.
As used in this Amended and Restated Engagement Letter, a Company Sale means, whether effected in one transaction or a series of transactions, any merger, consolidation, restructuring, reorganization, recapitalization, joint venture, exchange or other transaction or analogous event after the date hereof pursuant to which at least 50% of the Companys (x) capital stock or equivalents, or (y) assets (based on the book value thereof), revenue, income or business is transferred to a purchaser or group of affiliated purchasers. A Company Sale resulting in the transfer of at least 50% of the Companys voting stock constitutes control and represents a completed Company Sale for purposes of determining when the full Transaction Fee is payable and is to be paid. Nevertheless, FT Partners advisory efforts pursuant to this Amended and Restated Engagement Letter will continue after control is transferred to assist the Company with a second step merger or similar transaction. For the avoidance of doubt, no Capital Raise, Follow-On Offering and/or IPO shall be deemed to result in a Company Sale unless such transactions are used to effect an acquisition of at least 50% of the Companys capital stock or equivalents by a single purchaser (or single purchaser together with its affiliates or any other parties who are working together to effect an acquisition of the Company). For further avoidance of doubt, an acquisition by or merger with a publicly traded special purpose acquisition company shall be a Company Sale and not an IPO.
As used in this Amended and Restated Engagement Letter, a Capital Raise means a transaction after the date hereof and prior to the completion of an IPO or in conjunction with an IPO in which (i) the Company or the Companys stockholders sell less than 50% of the Companys capital stock or equivalents or (ii) the Company issues any convertible debt or other equity-linked debt securities (not including any non-convertible term loan or secured credit facility whether provided by a federal or state chartered bank or non-bank lender). For the avoidance of doubt, Capital Raise shall not include an IPO. For the avoidance of doubt, borrowings in the normal course of business from the Companys existing lenders as of the date hereof (regardless of form) will not be considered a Capital Raise. In addition, any equity or debt amounts contributed by FT Partners, members of the AvidXchange senior management team, Larry Brown, Pat Augustine, Todd Gorelick, Ken Miller or Ross Annable, either made directly or as participation in a FT Partners led Capital Raise, shall not be considered amounts subject to Capital Raise fees.
As used in this Amended and Restated Engagement Letter, an IPO means either (i) an underwritten initial public offering registered under the Securities Act of 1933, as amended (the Securities Act), of capital stock or equivalents of the Company, or (ii) an offering in which capital stock or equivalents of the Company are sold in a transaction registered under the Securities Act without an underwriting process (a so-called direct listing), in each case resulting in gross proceeds $.
As used in this Amended and Restated Engagement Letter, a Follow-On Offering means, at any time following the IPO, the first one or more underwritten public offerings registered under the Securities Act of capital stock or equivalents of the Company until the aggregate of such offerings equals at least $500,000,000 in cumulative aggregate gross proceeds.
For purposes of calculating any Transaction Fee, Aggregate Consideration shall be: the total gross proceeds and other consideration, directly or indirectly, paid or payable or otherwise distributed to the Company and/or its security holders (including holders of options, warrants and convertible securities) or affiliates in connection with any Transaction, including, without limitation the following: (i) cash; (ii) notes, securities and other property valued at the fair market value thereof (determined without any discount for restrictions on the free marketability of such property, including without limitation restrictions on transfer under applicable law or pursuant to an agreement, vesting or repurchase rights); (iii) liabilities (other than trade accounts payable, accrued expenses, and other similar liabilities incurred in the ordinary course of business, except to the extent contributing to a net working capital deficit), including all debt, pension liabilities, guarantees and working capital deficit assumed (or that remain outstanding), refinanced or extinguished as part of the Transaction; (iv) payments to be made in installments; and (v) amounts paid or payable under consulting agreements, employment agreements, severance agreements, supply, service, distribution or licensing agreements, agreements not to compete or similar arrangements (including such payments to management), in each case solely to the extent in excess of market terms. Irrespective of the terms in the definitive agreement for any Transaction, Aggregate Consideration shall be determined before taking into account the Transaction Fee and any other expense of the Company incurred in connection with the Transaction. Aggregate Consideration shall also include the aggregate amount of any (i) dividend or other distributions declared by the Company with respect to its stock that are part of a dividend recap or other transaction intended to return material amounts of capital to the Companys investors or made in connection with a Transaction, and (ii) amounts paid by the Company to repurchase any securities of the Company in connection with the Transaction. Non-cash consideration shall be valued as follows: (x) publicly traded securities shall be valued at the average of their closing prices (as reported in The Wall Street Journal) for the five trading days prior to the closing of the Transaction, and (y) any other non-cash consideration shall be valued at the fair market
| || || || || || || || |
| || ||Initials: || || || || || |
| || ||Company || ||__________ || ||FT Partners || ||__________|