Investor Rights Agreement, dated as of July 12, 2020, by and among Churchill Capital Corp III, Polaris Investment Holdings, L.P., Churchill Sponsor III LLC, Hellman & Friedman Capital Partners VIII, L.P., The Public Investment Fund of The Kingdom of Saudi Arabia, and the other parties named therein

EX-10.1 3 tm2024610d1_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

 

EXECUTION VERSION

 

INVESTOR RIGHTS AGREEMENT

 

THIS INVESTOR RIGHTS AGREEMENT (as it may be amended, supplemented or restated from time to time in accordance with its terms, the “Investor Rights Agreement”), dated as of July 12, 2020 (the “Effective Date”), is made by and among (i) Churchill Capital Corp III, a Delaware corporation (“PubCo”); (ii) Polaris Investment Holdings, L.P., a Delaware limited partnership (“PIH”); (iii) each of the Persons identified on the signature pages hereto under the heading “Sellers” (collectively, the “Sellers”); (iv) Hellman & Friedman Capital Partners VIII, L.P., a Delaware limited partnership, in its capacity as the initial Seller Representative; (v) Churchill Sponsor III LLC, a Delaware limited liability company; (vi) the Person identified on the signature page hereto under the heading “Founder Holder” (the “Founder Holder”); (vii) Public Investment Fund of Saudi Arabia, the sovereign wealth fund of Saudi Arabia (“PIF”); and (viii) solely for purposes of Section 2.4, MultiPlan, Inc., a New York corporation (“MultiPlan”). Each of PubCo, PIH, the Sellers, the Seller Representative, the Sponsor, the Founder Holder and PIF may be referred to herein as a “Party” and collectively as the “Parties”.

 

RECITALS

 

WHEREAS, PubCo has entered into that certain Agreement and Plan of Merger, dated as of the Effective Date (as it may be amended, supplemented or restated from time to time in accordance with the terms of such agreement, the “Merger Agreement”), by and among PubCo, Polaris Parent Corp., a Delaware corporation (“Polaris Parent”), PIH, Music Merger Sub I, Inc., a Delaware corporation, and Music Merger Sub II, LLC, a Delaware limited liability company, in connection with the business combination (the “Business Combination”) set forth in the Merger Agreement;

 

WHEREAS, pursuant to the Merger Agreement at the Closing, PubCo will acquire from PIH (as agent on behalf of the Sellers) all of the equity interests of the Polaris Parent, in exchange for cash and certain shares of Common Stock (the “Rollover PubCo Shares”);

 

WHEREAS, the Sellers and PIH have entered into that certain Plan of Liquidation, dated as of the Effective Date (as it may be amended, supplemented or restated from time to time in accordance with the terms of such agreement, the “Plan of Liquidation”);

 

WHEREAS, pursuant to the Plan of Liquidation, upon satisfaction of the conditions set forth therein, PIH will distribute the Rollover PubCo Shares to the Sellers (the “PIH Distribution”) in accordance with the terms of the Plan of Liquidation;

 

WHEREAS, PubCo and the Sponsor entered into that certain Registration Rights Agreement, dated as of February 13, 2020 (the “Original RRA”);

 

WHEREAS, in connection with the execution of this Investor Rights Agreement, PubCo and the Sponsor desire to terminate the Original RRA and replace it with this Investor Rights Agreement;

 

WHEREAS, on the Effective Date, the Parties desire to set forth their agreement with respect to governance, registration rights and certain other matters, in each case in accordance with the terms and conditions of this Investor Rights Agreement.

 

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Investor Rights Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

Article I
DEFINITIONS

 

Section 1.1            Definitions. As used in this Investor Rights Agreement, the following terms shall have the following meanings:

 

“Action” means any action, suit, charge, litigation, arbitration, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

 

“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith determination of the Board, after consultation with counsel to PubCo, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) PubCo has a bona fide business purpose for not making such information public.

 

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided, that no Party shall be deemed an Affiliate of PubCo or any of its subsidiaries for purposes of this Investor Rights Agreement.

 

“Automatic Shelf Registration Statement” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.

 

“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act; provided, that, prior to the PIH Distribution, each of the Sellers shall be deemed to Beneficially Own a percentage of the Rollover PubCo Shares equal to such Seller’s percentage ownership of the Equity Securities of PIH.

 

“Board” means the board of directors of PubCo.

 

“Business Combination” has the meaning set forth in the Recitals.

 

“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

 

“Bylaws” means the bylaws of PubCo, as in effect on the Closing Date, as the same may be amended from time to time.

 

 

“CEO Director” has the meaning set forth in Section 2.1(a).

 

“Certificate of Incorporation” means the certificate of incorporation of PubCo, as in effect on the Closing Date, as the same may be amended from time to time.

 

“CFIUS” means the Committee on Foreign Investment in the United States and each member agency acting on behalf of the Committee.

 

“CFIUS Clearance” means (a) the Filing Parties have received a written notice from CFIUS stating that (i) CFIUS has determined that the Filed Transaction does not constitute a “covered transaction” and is not subject to review under Section 721, (ii) CFIUS has concluded all action under Section 721 with respect to the Filed Transaction, or (iii) CFIUS is not able to conclude action under Section 721 with respect to the Filed Transaction on the basis of the declaration and that the parties may submit a written notice to CFIUS; or (b) if CFIUS has sent a report to the President of the United States (the “President”) requesting the President’s decision with respect to the Filed Transaction, either (1) the period under Section 721 during which the President may announce his decision shall have expired without his taking any action to suspend or prohibit the Filed Transaction or (2) the President shall have announced a decision not to take any action to suspend or prohibit the Filed Transaction.

 

“CFIUS Filings” has the meaning set forth in Section 2.4(b).

 

“Charitable Distribution” means the distribution or similar Transfer of shares of Common Stock by a Holder that is a PE Fund to its partners, members, stockholders or other equityholders solely to effect charitable donations in connection with a Transfer of shares of Common Stock by such PE Fund that is otherwise permitted under this Investor Rights Agreement (other than, for the avoidance of doubt, a Transfer solely permitted pursuant to clause (iii) of Section 4.2); provided, that the aggregate amount of shares of Common Stock subject to the Charitable Distribution, together with such shares of Common Stock otherwise Transferred by such PE Fund in connection therewith, shall not exceed the aggregate amount of shares of Common Stock that such PE Fund would have been permitted to so Transfer.

 

“Closing” has the meaning given to such term in the Merger Agreement.

 

“Closing Date” has the meaning given to such term in the Merger Agreement.

 

“Common Stock” means shares of the Class A common stock, par value $0.0001 per share, of PubCo, including (i) any shares of such Class A common stock issuable upon the exercise of any warrant or other right to acquire shares of such Class A common stock and (ii) any Equity Securities of PubCo that may be issued or distributed or be issuable with respect to such Class A common stock by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction.

 

“Confidential Information” has the meaning set forth in Section 2.3.

 

“Demand Delay” has the meaning set forth in Section 3.2(a)(ii).

 

“Demand Initiating Holders” has the meaning set forth in Section 3.2(a).

 

 

“Demand Period” has the meaning set forth in Section 3.2(c).

 

“Demand Registration” has the meaning set forth in Section 3.2(a).

 

“Effective Date” has the meaning set forth in the Preamble.

 

“Eligible Demand Participation Holders” means (a) prior to the expiration of the Lock-Up Period, each of the Holders other than the Sponsor and Founder Holder, and (b) solely following the expiration of the Lock-Up Period, each of the Holders.

 

“Eligible Take-Down Holders” means (a) prior to the expiration of the Lock-Up Period, each of the Shelf Holders other than the Sponsor and Founder Holder, and (b) solely following the expiration of the Lock-Up Period, each of the Shelf Holders.

 

“Equity Securities” means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, as the same shall be in effect from time to time.

 

“Family Member” means with respect to (i) any individual, a spouse, lineal descendant (whether natural or adopted) or spouse of a lineal descendant of such individual or any trust created for the benefit of such individual or of which any of the foregoing is a beneficiary or (ii) any trust, (x) any current or former employee of Polaris Parent and its subsidiaries who is a trustee or beneficiary of such trust, and any spouse, lineal descendant (whether natural or adopted) or spouse of a lineal descendant of such current or former employee or any other trust created for the benefit of such current or former employee or of which any of the foregoing is a beneficiary and (y) to the extent such trust is a Seller and owns Equity Securities of PIH as of the date hereof, any current or former employee of Polaris Parent and its subsidiaries whose spouse, lineal descendant (whether natural or adopted) or lineal descendant's spouse is a trustee or beneficiary of such trust, and any spouse, lineal descendant (whether natural or adopted) or spouse of a lineal descendant of such current or former employee or any other trust created for the benefit of such current or former employee or of which any of the foregoing is a beneficiary.

 

“Filed Transaction” means PIF’s right to appoint the PIF Board Observer provided in Article II of this Investor Rights Agreement.

 

“Filing Parties” has the meaning set forth in Section 2.4(a).

 

“FINRA” means the Financial Industry Regulatory Authority, Inc.

 

 

“Founder Holder” has the meaning set forth in the Preamble.

 

“GIC Holders” means Viggo Investment Pte. Ltd., a Singapore private limited company, and any of its Permitted Transferees that own Common Stock and are or have become parties to this Investor Rights Agreement.

 

“Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

 

“H&F Holders” means (a) Hellman & Friedman Capital Partners VIII, L.P., a Cayman Islands exempted limited partnership, (b) Hellman & Friedman Capital Partners VIII (Parallel), L.P., a Cayman Islands exempted limited partnership, (c) HFCP VIII (Parallel-A), L.P., a Delaware limited partnership, (d) H&F Executives VIII, L.P., a Cayman Islands exempted limited partnership, (e) H&F Associates VIII, L.P., a Cayman Islands exempted limited partnership and (f) H&F Polaris Partners, L.P., a Delaware limited partnership, and any of their respective Permitted Transferees that own Common Stock and are or have become parties to this Investor Rights Agreement.

 

“Holder” means any holder of Registrable Securities who is a Party to, or who succeeds to rights under, this Investor Rights Agreement pursuant to Section 5.1; provided, that, other than the Sellers and the Founder Holder, a Party who does not hold Registrable Securities as of the Closing Date and who acquires Registrable Securities after the Closing Date will not be a Holder until such Party gives PubCo a representation in writing of the number of Registrable Securities it holds; provided further that, prior to the PIH Distribution, each of the Sellers shall be deemed to be a “Holder” for all purposes hereunder for so long as such Seller Beneficially Owns any Registrable Securities; provided further that, the Founder Holder shall be deemed to be a “Holder” for all purposes hereunder for so long as the Founder Holder Beneficially Owns any Registrable Securities. Notwithstanding anything herein to the contrary, PIF shall not be a Holder for any purposes under this Investor Rights Agreement.

 

“Holder Indemnitees” has the meaning set forth in Section 5.13(a).

 

“Indemnification Sources” has the meaning set forth in Section 5.13(c).

 

“Indemnified Liabilities” has the meaning set forth in Section 5.13(a).

 

“Indemnified Party” has the meaning set forth in Section 3.6(c).

 

“Indemnitee-Related Entities” has the meaning set forth in Section 5.13(c).

 

“Initial Lock-Up Period” has the meaning set forth in Section 4.1(a).

 

“In-Kind Distribution” means any Charitable Distribution or LP Distribution.

 

“Investor Rights Agreement” has the meaning set forth in the Preamble.

 

 

“Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations, and rulings of a Governmental Entity, including common law. All references to “Laws” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.

 

“LGP Holders” means (a) Green Equity Investors VI, L.P., a Delaware limited partnership, (b) Green Equity Investors Side VI, L.P., a Delaware limited partnership, (c) LGP Associates VI-A LLC, a Delaware limited liability company and (d) LGP Associates VI-B LLC, a Delaware limited liability company, and their respective Permitted Transferees that own Common Stock and are or have become parties to this Investor Rights Agreement.

 

“Lock-Up Period” has the meaning set forth in Section 4.1.

 

“Lock-Up Shares” has the meaning set forth in Section 4.1.

 

“Locked-Up Warrants” means the 4,800,000 Warrants subject to vesting in accordance with the Sponsor Agreement (as defined in the Merger Agreement).

 

“LP Distribution” means a distribution (other than a Charitable Distribution), however structured (including through dissolution), by any Holder of Equity Securities of PubCo to such Holder’s limited partners, members or equityholders (as applicable).

 

“Management Holder” means each current or former employee of Polaris Parent or its subsidiaries, or any Family Member thereof, who owns Common Stock as of the Closing Date and is a Seller hereunder (either directly or by proxy), in each case, for so long as such Person remains a Holder.

 

“Management Lock-Up Period” has the meaning set forth in Section 4.1(a).

 

“Market Stand Off Period” has the meaning set forth in Section 3.10.

 

“Marketed” means an Underwritten Shelf Take-Down or other Underwritten Offering, as applicable, that involves the use or involvement of a customary “road show” (including an “electronic road show”) or other substantial marketing effort by Underwriters over a period of at least 48 hours.

 

“Merger Agreement” has the meaning set forth in the Recitals.

 

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus, in the light of the circumstances under which they were made, not misleading.

 

“MultiPlan” has the meaning set forth in the Preamble.

 

“Necessary Action” means, with respect to any Party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law and within such Party’s control, and in the case of any action that requires a vote or other action on the part of the Board to the extent such action is consistent with fiduciary duties that PubCo’s directors may have in such capacity) necessary to cause such result, including (a) calling special meetings of stockholders, (b) voting or providing a written consent or proxy, if applicable in each case, with respect to shares of Common Stock, (c) causing the adoption of stockholders’ resolutions and amendments to the Organizational Documents, (d) executing agreements and instruments, (e) making, or causing to be made, with Governmental Entities, all filings, registrations or similar actions that are required to achieve such result and (f) nominating or appointing certain Persons (including to fill vacancies) and providing the highest level of support for election of such Persons to the Board in connection with the annual or special meeting of stockholders of PubCo.

 

 

“Non-Marketed” means an Underwritten Shelf Take-Down that is not a Marketed Underwritten Shelf Take-Down.

 

“Non-Redemption Agreements” has the meaning given to such term in the Merger Agreement.

 

“Organizational Documents” means the Certificate of Incorporation and the Bylaws.

 

“Original RRA” has the meaning set forth in the Recitals.

 

“Party” has the meaning set forth in the Preamble.

 

“PE Fund” means (a) a private equity investment fund that makes investments in multiple portfolio companies and was not formed primarily to invest in PIH or PubCo or any of its subsidiaries, together with any alternative investment vehicles related to that private equity investment fund and (b) any investment vehicle directly or indirectly wholly owned by any fund described in clause (a).

 

“Permitted Transferee” means with respect to any Person, (a) any Family Member of such Person, (b) any Affiliate of such Person, and (c) any Affiliate of any Family Member of such Person (excluding any Affiliate under this clause (c) who operates or engages in a business which competes with the business of PubCo or MultiPlan).

 

“Person” means any natural person, sole proprietorship, partnership, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

 

“PIH Distribution” has the meaning set forth in the Recitals.

 

“PIH Rollover Holders” means (a) SIH MPH Rollover Co, L.P., a Delaware limited partnership, (b) Partners Group Client Access 17, L.P. a Cayman Islands limited partnership, (c) Partners Group Private Equity (Master Fund) LLC, a Delaware limited liability company, and (d) 30 MP Investment, LLC, a Delaware limited liability company, and their respective Permitted Transferees that own Common Stock and are or have become parties to this Investor Rights Agreement.

 

“Prospectus” means the prospectus included in any Registration Statement, all amendments (including post-effective amendments) and supplements to such prospectus, and all material incorporated by reference in such prospectus.

 

 

“PubCo” has the meaning set forth in the Preamble.

 

“Registrable Securities” means (a) any shares of Common Stock, (b) any Warrants or any shares of Common Stock issued or issuable upon the exercise thereof and (c) any Equity Securities of PubCo or any subsidiary of PubCo that may be issued or distributed or be issuable with respect to the securities referred to in clauses (a) or (b) by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, in each case Beneficially Owned by a Holder as of immediately following the Closing, other than any security received pursuant to an incentive plan adopted by PubCo on or after the Closing Date; provided, however, that any such Registrable Securities shall cease to be Registrable Securities to the extent (A) a Registration Statement with respect to the sale of such Registrable Securities has become effective under the Securities Act and such Registrable Securities have been sold, transferred, disposed of or exchanged in accordance with the plan of distribution set forth in such Registration Statement, (B) such Registrable Securities shall have ceased to be outstanding, (C) such Registrable Securities have been sold to, or through, a broker, dealer or Underwriter in a public distribution or other public securities transaction or (D)(i) the Holder thereof, together with its, his or her Permitted Transferees, Beneficially Owns less than one percent (1%) of the shares of Common Stock that are outstanding at such time and (ii) such shares of Common Stock are eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to PubCo’s transfer agent and the affected Holder (which opinion may assume that such Holder (and any predecessor holder of such shares of Common Stock) is not, and has not been at any time during the 90 days immediately before the date of such opinion, an Affiliate of PubCo except with respect to any control determined to be established under this Investor Rights Agreement), as reasonably determined by PubCo, upon the advice of counsel to PubCo. It is understood and agreed that, for purposes of this Investor Rights Agreement, where reference is made to Registrable Securities being listed with any securities exchange or automated quotation system, such reference shall not include the Warrants (although it shall include the shares of Common Stock issued or issuable upon the exercise thereof).

 

“Registration” means a registration, including any related Shelf Take-Down, effected by preparing and filing a registration statement, prospectus or similar document in compliance with the requirements of the Securities Act, and such registration statement becoming effective.

 

“Registration Expenses” means the expenses of a Registration or other Transfer pursuant to the terms of this Investor Rights Agreement, including (a) all SEC or stock exchange registration and filing fees (including, if applicable, the fees and expenses of any “qualified independent underwriter,” as such term is defined in Rule 5121 of FINRA (or any successor provision), and of its counsel), (b) all fees and expenses of complying with securities or blue sky laws (including fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of the Registrable Securities), (c) all printing, messenger and delivery expenses, (d) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange and all rating agency fees, (e) the fees and disbursements of counsel for PubCo and of its independent public accountants, including the expenses of any special audits and/or comfort letters required by or incident to such performance and compliance, (f) any fees and disbursements of Underwriters customarily paid by the issuers or sellers of securities, including liability insurance if PubCo so desires or if the Underwriters so require, and the reasonable fees and expenses of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any, (g) the reasonable and documented fees and out-of-pocket expenses of one counsel for all of the Holders participating in such Registration or other Transfer, selected by such Holders that own a majority of the Registrable Securities participating in such Registration or other Transfer, (h) the costs and expenses of PubCo relating to analyst and investor presentations or any “road show” undertaken in connection with the Registration and/or marketing of the Registrable Securities (including the expenses of the Holders) and (i) any other fees and disbursements customarily paid by the issuers of securities.

 

 

“Registration Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Investor Rights Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

“Representatives” means, with respect to any Person, any of such Person’s officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person acting on behalf of such Person.

 

“Restricted Shelf Take-Down” means a Non-Marketed Underwritten Shelf Take-Down or a Non-Underwritten Shelf Take-Down.

 

“Restricted Take-Down Selling Holders” has the meaning set forth in Section 3.1(d)(iv)(B).

 

“Rollover PubCo Shares” has the meaning set forth in the Recitals.

 

“SEC” means the United States Securities and Exchange Commission.

 

“Section 721” means Section 721 of the Defense Production Act of 1950, as amended, and all regulations issued and effective thereunder.

 

“Securities Act” means the Securities Act of 1933, as amended, and any successor thereto, as the same shall be in effect from time to time.

 

“Seller Director” has the meaning set forth in Section 2.1(a).

 

“Seller Lock-Up Period” has the meaning set forth in Section 4.1(a).

 

“Seller Representative” means Hellman & Friedman Capital Partners VIII, L.P., or such other Person who is identified as the replacement Seller Representative by the then existing Seller Representative giving prior written notice to PubCo.

 

“Sellers” has the meaning set forth in the Preamble.

 

“Shelf Holder” means any Holder that owns Registrable Securities that have been registered on a Shelf Registration Statement.

 

 

 

“Shelf Registration” means a registration of securities pursuant to a Registration Statement filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act.

 

“Shelf Registration Statement” means a Registration Statement of PubCo filed with the SEC on either (a) Form S-3 (or any successor form or other appropriate form under the Securities Act) or (b) if PubCo is not permitted to file a Registration Statement on Form S-3, a Registration Statement on Form S-1 (or any successor form or other appropriate form under the Securities Act), in each case for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act covering the Registrable Securities, as applicable.

 

“Shelf Suspension” has the meaning set forth in Section 3.1(c).

 

“Shelf Take-Down” means any offering or sale of Registrable Securities initiated by a Shelf Take-Down Initiating Holder pursuant to a Shelf Registration Statement.

 

“Shelf Take-Down Initiating Holders” means each of (a) the H&F Holders, (b) solely following the one-year anniversary of the Closing Date, and subject to Section 3.2(d), the GIC Holders, LGP Holders and PIH Rollover Holders, (c) solely following the expiration of the Lock-Up Period, and subject to Section 3.2(d), the Sponsor and the Founder Holder and (d) solely following the expiration of the Lock-Up Period, and solely with respect to Non-Underwritten Shelf Take-Downs, the other Shelf Holders.

 

“Sponsor” means Churchill Sponsor III LLC, or, upon its dissolution, the Founder Holder.

 

“Sponsor Director” has the meaning set forth in Section 2.1(a).

 

“Subscription Agreements” has the meaning given to such term in the Merger Agreement.

 

“Subsequent Shelf Registration” has the meaning set forth in Section 3.1(b).

 

“Take-Down Participation Notice” has the meaning set forth in Section 3.1(d)(iv)(C).

 

“Take-Down Tagging Holder” has the meaning set forth in Section 3.1(d)(iv)(B)

 

“Trading Day” means a day on which the New York Stock Exchange or such other principal United States securities exchange on which the Common Stock is listed, quoted or admitted to trading and is open for the transaction of business (unless such trading shall have been suspended for the entire day).

 

“Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect, transfer, sale, pledge or hypothecation, distribution or other disposition by the Transferor (whether by operation of law or otherwise) and, when used as a verb, the Transferor voluntarily or involuntarily, directly or indirectly, transfers, sells, pledges or hypothecates, distributes or otherwise disposes of (whether by operation of law or otherwise), including, in each case, (a) the establishment or increase of a put equivalent position or liquidation with respect to, or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security or (b) entry into any swap or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise; provided, that none of the following will be considered a Transfer: (A) a pledge of Equity Securities of PubCo as collateral for a PE Fund’s bona fide revolving credit facility that is also secured by other private equity investments of such PE Fund and (B) a transfer of partnership interests in any PE Fund or in any Person that holds a direct or indirect interest in such PE Fund. The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings. For avoidance of doubt, the PIH Distribution and any In-Kind Distribution shall each be deemed a Transfer.

 

 

“Underwriter” means any investment banker(s) and manager(s) appointed to administer the offering of any Registrable Securities as principal in an Underwritten Offering.

 

“Underwritten Offering” means a Registration in which securities of PubCo are sold to an Underwriter for distribution to the public.

 

“Underwritten Shelf Take-Down” has the meaning set forth in Section 3.1(d)(ii)(A).

 

“Underwritten Self Take-Down Notice” has the meaning set forth in Section 3.1(d)(ii)(A).

 

“Warrants” means the following outstanding warrants of PubCo, each exercisable for one share of Common Stock: (a) warrants to purchase 23,000,000 shares of Common Stock issued to the Sponsor pursuant to that certain Private Placement Warrants Purchase Agreement, dated February 13, 2020, by and between the Sponsor and PubCo, for a purchase price of $1.00 per warrant and (b) warrants to purchase up to 1,500,000 shares of Common Stock issuable to the Sponsor upon the conversion of all or any portion of the unpaid principal balance of that certain Promissory Note issued by PubCo to the Sponsor on July 12, 2020.

 

“Well-Known Seasoned Issuer” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.

 

Section 1.2             Interpretive Provisions. For all purposes of this Investor Rights Agreement, except as otherwise provided in this Investor Rights Agreement or unless the context otherwise requires:

 

(a)             the meanings of defined terms are applicable to the singular as well as the plural forms of such terms.

 

(b)            the words “hereof”, “herein”, “hereunder” and words of similar import, when used in this Investor Rights Agreement, refer to this Investor Rights Agreement as a whole and not to any particular provision of this Investor Rights Agreement.

 

(c)             references in this Investor Rights Agreement to any Law shall be deemed also to refer to such Law, and all rules and regulations promulgated thereunder.

 

(d)            whenever the words “include”, “includes” or “including” are used in this Investor Rights Agreement, they shall mean “without limitation.”

 

 

(e)             the captions and headings of this Investor Rights Agreement are for convenience of reference only and shall not affect the interpretation of this Investor Rights Agreement.

 

(f)              pronouns of any gender or neuter shall include, as appropriate, the other pronoun forms.

 

Article II
GOVERNANCE

 

Section 2.1               Board of Directors.

 

(a)              Composition of the Board. At and following the Closing, each of the Sponsor, the Sellers and PIF, severally and not jointly, agrees with PubCo to take all Necessary Action to cause (x) the Board to be comprised of (i) eleven (11) directors and (y) those individuals to be nominated in accordance with this Article II, initially (i) three (3) of whom have been nominated by the Seller Representative, initially Allen Thorpe, Hunter Philbrick and Paul Emery, and thereafter designated pursuant to Section 2.1(b) or Section 2.1(f) of this Investor Rights Agreement (each, a “Seller Director”), (ii) three (3) of whom have been nominated by the Sponsor, initially Michael Klein, Glenn August and an additional individual designated pursuant to Section 2.1(c), and thereafter designated pursuant to Section 2.1(c) or Section 2.1(f) of this Investor Rights Agreement (each, a “Sponsor Director”), (iii) four (4) of whom have been nominated pursuant to Section 2.1(d) or Section 2.1(f) (each, an “Independent Director”) and (iv) one of whom shall be the chief executive officer of PubCo (the “CEO Director”). At and following the Closing, each of the Sponsor, the Sellers and PIF, severally and not jointly, agrees with PubCo to take all Necessary Action to cause the foregoing directors to be divided into three classes of directors, with each class serving for staggered three year-terms, and at least one Seller Director and one Sponsor Director in each class of directors. The initial term of the Class I directors shall expire immediately following PubCo’s 2021 annual meeting of stockholders at which directors are elected. The initial term of the Class II directors shall expire immediately following PubCo’s 2022 annual meeting of stockholders at which directors are elected. The initial term of the Class III directors shall expire immediately following PubCo’s 2023 annual meeting at which directors are elected.

 

(b)               Seller Representation. PubCo shall take all Necessary Action to include in the slate of nominees recommended by PubCo for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected (including, for the avoidance of doubt, the Special Meeting (as defined in the Merger Agreement)), a number of individuals designated by the Seller Representative that, if elected, will result in the H&F Holders having a number of directors serving on the Board as shown below:

 

Common Stock Beneficially Owned by the H&F Holders as a Percentage of the Common Stock Beneficially Owned by the H&F Holders on the Closing Date		Number of Seller Directors
50% or greater			3
25% or greater, but less than 50%			2
10% or greater, but less than 25%			1
Less than 10%			0

 

 

For so long as the Board is divided into three classes, PubCo agrees to take all Necessary Action to apportion the Seller Directors among such classes so as to maintain the proportion of the Seller Directors in each class as nearly as possible to the relative apportionment of the Seller Directors among the classes as contemplated in Section 2.1(a).

 

(c)             Sponsor Representation. PubCo shall take all Necessary Action to include in the slate of nominees recommended by PubCo for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected (including, for the avoidance of doubt, the Special Meeting (as defined in the Merger Agreement)), a number of individuals designated by the Sponsor that, if elected, will result in the Sponsor having a number of directors serving on the Board as shown below:

 

Common Stock Beneficially Owned by the Sponsor (and its Permitted Transferees) as a Percentage of the Common Stock Beneficially Owned by the Sponsor on the Closing Date		Number of Sponsor Directors
75% or greater			3
50% or greater, but less than 75%			2
25% or greater, but less than 50%			1
Less than 25%			0

 

For so long as the Board is divided into three classes, PubCo agrees to take all Necessary Action to apportion the Sponsor Directors among such classes so as to maintain the proportion of the Sponsor Directors in each class as nearly as possible to the relative apportionment of the Sponsor Directors among the classes as contemplated in Section 2.1(a).

 

(d)            Independent Directors. PubCo shall take all Necessary Action to include in the slate of nominees recommended by PubCo for election as directors at the first applicable annual or special meeting of stockholders at which directors are to be elected (including, for the avoidance of doubt, the Special Meeting (as defined in the Merger Agreement)) following each applicable designation by the Seller Representative, (i) Richard Clarke, (ii) Anthony Colaluca and (iii) two (2) other individuals designated by the Seller Representative and approved by the Sponsor (such approval not to be unreasonably withheld, conditioned or delayed), in the case of this clause (iii), each of whom will satisfy the audit committee independence requirements of the New York Stock Exchange. For the avoidance of doubt, it is understood and agreed that, following the initial term of each of the foregoing Independent Directors, the four (4) Independent Directors shall be nominated by the Nominating and Corporate Governance Committee and approved by the Board.

 

(e)            Decrease in Directors. Upon any decrease in the number of directors that the Seller Representative or the Sponsor, as applicable, is entitled to designate for nomination to the Board pursuant to Section 2.1(b) or Section 2.1(c), the H&F Holders or the Sponsor, as applicable, shall take all Necessary Action to cause the appropriate number of Seller Directors or Sponsor Directors, as applicable, to offer to tender their resignation at least 60 days prior to the expected date of PubCo’s next annual meeting of stockholders for which PubCo has not proposed a slate of directors; provided, that, for the avoidance of doubt, such resignation may be made effective as of the last day of the term of such director.Notwithstanding the foregoing, the Nominating and Corporate Governance Committee may, in its sole discretion, recommend for nomination a Seller Director or Sponsor Director that has tendered his or her resignation pursuant to this Section 2.1(e).

 

 

(f)              Removal; Vacancies. The Seller Representative or the Sponsor, as applicable, shall have the exclusive right to (i) remove their nominees from the Board, and PubCo shall take all Necessary Action to cause the removal of any such nominee at the request of the applicable Party and (ii) designate directors for election or appointment, as applicable, to the Board to fill vacancies created by reason of death, removal or resignation of its nominees to the Board, and PubCo shall take all Necessary Action to nominate or cause the Board to appoint, as applicable, replacement directors designated by the applicable Party to fill any such vacancies created pursuant to clause (i) or (ii) above as promptly as practicable after such designation (and in any event prior to the next meeting or action of the Board or applicable committee). Notwithstanding anything to the contrary contained in this Section 2.1(f), no Party shall have the right to designate a replacement director, and PubCo shall not be required to take any action to cause any vacancy to be filled by any such designee, to the extent that election or appointment of such designee to the Board would result in a number of directors nominated or designated by such Party in excess of the number of directors that such Party is then entitled to nominate for membership on the Board pursuant to this Investor Rights Agreement. Each of the Sponsor, the Sellers and PIF agrees with PubCo not to take action to remove any director nominee of another Party from office unless such removal is for cause or if the applicable Party is no longer entitled to nominate such director pursuant to this Section 2.1.

 

(g)             Committees. In accordance with PubCo’s Organizational Documents, (i) the Board shall establish and maintain committees of the Board for (x) Audit, (y) Compensation and (z) Nominating and Corporate Governance, and (ii) the Board may from time to time by resolution establish and maintain other committees of the Board. Subject to applicable Laws and stock exchange regulations, and subject to requisite independence requirements applicable to such committee, for so long as the H&F Holders Beneficially Own Common Stock representing at least 10% of the Common Stock Beneficially Owned by the H&F Holders on the Closing Date, PubCo shall take, and each of the Sellers, the Sponsor and PIF, severally and not jointly, agree with PubCo to take, all Necessary Action to have at least one Seller Director appointed to serve on each committee of the Board.

 

(h)             Reimbursement of Expenses. PubCo shall reimburse the directors for all reasonable out-of-pocket expenses incurred in connection with their attendance at meetings of the Board and any committees thereof, including travel, lodging and meal expenses.

 

(i)              Indemnification. For so long as any Seller Director or Sponsor Director serves as a director of PubCo, (i) PubCo shall provide such Seller Director or Sponsor Director with the same expense reimbursement, benefits, indemnity, exculpation and other arrangements provided to the other directors of PubCo and (ii) PubCo shall not amend, alter or repeal any right to indemnification or exculpation covering or benefiting any Seller Director or Sponsor Director nominated pursuant to this Investor Rights Agreement as and to the extent consistent with applicable Law, the Certificate of Incorporation, the Bylaws and any indemnification agreements with directors (whether such right is contained in the Organizational Documents or another document) (except to the extent such amendment or alteration permits PubCo to provide broader indemnification or exculpation rights on a retroactive basis than permitted prior thereto).

 

 

(j)              PIF Board Observer. Subject to PIF's receipt of CFIUS Clearance, for so long as PIF Beneficially Owns Common Stock representing 50% or more of the Common Stock Beneficially Owned by PIF (and its Permitted Transferees) on the Closing Date, PIF shall have the right to collectively appoint one (1) non-voting board observer (the “PIF Board Observer”). The PIF Board Observer shall have the right to (i) attend all meetings of the Board in a non-voting, observer capacity and (ii) receive copies of all notices, minutes, consents and other materials that PubCo provides to the Board in the same manner as such materials are provided to the Board; provided, that, (x) PIF's right to appoint the PIF Board Observer is non-transferable and shall automatically be terminated without any further action required in the event PIF's aggregate ownership falls below 50% of the Common Stock Beneficially Owned by PIF (and its Permitted Transferees) on the Closing Date, (y) the PIF Board Observer shall not be entitled to vote on any matter submitted to the Board nor to offer any motions or resolutions to the Board, and the PIF Board Observer's presence or absence at any meeting of the Board will not be relevant for purposes of determining whether there is a quorum, and (z) PubCo may withhold information or materials from the PIF Board Observer and exclude the PIF Board Observer from any executive sessions and/or all or any portion of any meeting or discussion of the Board, in each case of this clause (z), if the Board determines in good faith that access to such information and/or materials or attendance at such meeting or portion thereof would (A) adversely affect the attorney-client privilege between PubCo and its counsel, (B) adversely affect PubCo or its Affiliates under governmental regulations or other applicable laws, (C) be in contravention of any agreement or arrangement with any governmental authority, including any such agreement or arrangement entered into in connection with obtaining the CFIUS Clearance or (D) result in a conflict of interest. PubCo shall use reasonable best efforts to provide virtual access to any meeting of the Board for the PIF Board Observer. The PIF Board Observer shall be subject to the same obligations as the members of the Board with respect to confidentiality and conflicts of interest (and shall provide, prior to attending any meetings or receiving any information or materials, such reasonable assurances to such effect as may be requested by PubCo). Subject to Section 2.1(k), PIF may appoint one (1) alternate, who may attend any meetings of the Board, which the PIF Board Observer is unable to attend; provided, that at any such meeting, such alternate will be considered the PIF Board Observer for all purposes under this Investor Rights Agreement. For the avoidance of doubt, PubCo shall not, and shall not be required to, provide to the PIF Board Observer any "sensitive personal data" as defined in 31 CFR § 800.241. Notwithstanding anything herein to the contrary, PIF shall have no rights set forth in this Investor Rights Agreement with respect to the PIF Board Observer unless and until CFIUS Clearance has been received.

 

 

(k)             Review of Nominees. Any nominee as a Seller Director, Sponsor Director or PIF Board Observer (or alternate thereof) shall be subject to PubCo’s customary due diligence process, including its review of a completed questionnaire and a background check. Based on the foregoing, PubCo may reasonably object to any such nominee within 15 days of receiving such completed questionnaire and background check authorization, (i) provided it does so in good faith and (ii) solely to the extent such objection is based upon any of the following: (1) such nominee was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (2) such nominee was the subject of any order, judgment or decree not subsequently reversed, suspended or vacated of any court of competent jurisdiction, permanently or temporarily enjoining such proposed director or observer from, or otherwise limiting, the following activities: (A) engaging in any type of business practice, or (B) engaging in any activity in connection with the purchase or sale of any security or in connection with any violation of federal or state securities laws; (3) such nominee was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in clause (2)(B), or to be associated with persons engaged in such activity; (4) such nominee was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated; or (5) such nominee was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to a violation of any federal or state securities laws or regulations. In the event the Board reasonably finds any such nominee to be unsuitable based upon one or more of the foregoing clauses (1) through (5) and reasonably objects to such nominated director or observer, the applicable Holder shall be entitled to propose a different nominee to the Board within thirty (30) days of PubCo’s notice to such Holder of its objection to such nominee and such replacement nominee shall be subject to the review process outlined in this Section 2.1(k).

 

Section 2.2              PubCo Cooperation. PubCo shall take all Necessary Action to cause the Board to consist of the number of directors specified in Section 2.1 and to include in the slate of nominees to be voted upon by the stockholders of PubCo the Persons designated for nomination to the Board in accordance with Section 2.1.

 

 

Section 2.3             Sharing of Information. To the extent permitted by antitrust, competition or any other applicable Law, each of PubCo, the Sellers, the Sponsor and PIF agrees and acknowledges that the directors designated by the Seller Representative and the Sponsor, and the PIF Board Observer designated by PIF, may share confidential, non-public information about PubCo and its subsidiaries (“Confidential Information”) with the Sellers, the Sponsor, the GIC Holders or PIF, as applicable. Each of the Sellers, the Sponsor and PIF recognizes that it, or its Affiliates and Representatives, has acquired or will acquire Confidential Information the use or disclosure of which could cause PubCo substantial loss and damages that could not be readily calculated and for which no remedy at Law would be adequate. Accordingly, each of the Sellers, the Sponsor and PIF covenants and agrees with PubCo that it will not (and will cause its respective controlled Affiliates and Representatives not to) at any time, except with the prior written consent of PubCo, directly or indirectly, disclose any Confidential Information known to it to any third party, unless (a) such information becomes known to the public through no fault of such Party, (b) disclosure is required by applicable Law (including any filing following the Closing Date with the SEC pursuant to applicable securities laws or any filing required to be made in connection with obtaining CFIUS Clearance) or court of competent jurisdiction or requested by a Governmental Entity; provided, that (other than in the case of any required filing following the Closing Date with the SEC or in connection with any routine audit or examination as described below) such Party promptly notifies PubCo of such requirement or request and takes commercially reasonable steps, at the sole cost and expense of PubCo, to minimize the extent of any such required disclosure, (c) such information was available or becomes available to such Party before, on or after the Effective Date, without restriction, from a source (other than PubCo) without any breach of duty to PubCo or (d) such information was independently developed by such Party or its Representatives without the use of the Confidential Information. Notwithstanding the foregoing, nothing in this Investor Rights Agreement shall prohibit any of the Sellers, the Sponsor and PIF from disclosing Confidential Information (x) to any Affiliate, Representative, limited partner, member or shareholder of such Party, provided, that such Person shall be bound by an obligation of confidentiality with respect to such Confidential Information and such Party shall be responsible for any breach of this Section 2.3 by any such Person or (y) if such disclosure is made to a governmental or regulatory authority with jurisdiction over such Party in connection with a routine audit or examination that is not specifically directed at PubCo or the Confidential Information, provided that such Party shall request that confidential treatment be accorded to any information so disclosed. No Confidential Information shall be deemed to be provided to any Person, including any Affiliate of a Seller, the Sponsor or PIF, unless such Confidential Information is actually provided to such Person.

 

Section 2.4               CFIUS Filing Obligations

 

(a)              PIF, MultiPlan and PubCo (collectively, the “Filing Parties”) shall use their respective reasonable best efforts to prepare and submit to CFIUS a declaration and other appropriate documents within the meaning of 31 C.F.R. § 800.404 with respect to the Filed Transaction as promptly as practicable after signing this Investor Rights Agreement (a “Declaration”).

 

(b)             The Filing Parties shall use their respective reasonable best efforts to: (i) respond to any request for additional information or documentation by CFIUS as promptly as practicable (and in any event in accordance with applicable regulatory requirements), and (ii) prepare and file any other submissions with CFIUS that are formally requested by CFIUS to be made, or which the Filing Parties mutually agree should be made, in each case in connection with the Filed Transaction (collectively with the Declaration, “CFIUS Filings”).

 

(c)             For the avoidance of doubt, if CFIUS requests that the Filing Parties submit a written notice with CFIUS pursuant to 31 C.F.R. § 800.407(a)(1), the Filing Parties shall use their respective reasonable best efforts to: (i) prepare and prefile with CFIUS a draft joint voluntary notice and other appropriate documents within the meaning of 31 C.F.R. § 800.501(g) as promptly as practicable, and (ii) as promptly as practicable after notification by CFIUS that the draft joint voluntary notice satisfies all requirements of 31 C.F.R. § 800.502, jointly file with CFIUS a formal joint voluntary notice within the meaning of 31 C.F.R. § 800.502.

 

 

(d)             To the extent permitted by applicable law and not prohibited by CFIUS, and subject to all applicable privileges (including the attorney client privilege), the Filing Parties shall use their respective reasonable best efforts to (i) cooperate and coordinate with the other Filing Parties in the making of the CFIUS Filings and in connection with resolving any investigation, request or other inquiry of CFIUS (except for any exhibits providing the personal identifier information required by 31 C.F.R § 800.502(c)(5)(vi), and considering all reasonable additions, deletions or changes suggested in connection therewith), (ii) supply the other Filing Parties with any information and reasonable assistance that may be required or reasonably requested in connection with the making of such CFIUS Filings, and (iii) assist and cooperate with the other Filing Parties to resolve such objections, if any, that CFIUS may assert with respect to the Filed Transaction; provided that, with respect to MultiPlan and PubCo, such efforts and actions shall not (A) impose on MultiPlan, PubCo or any of their respective subsidiaries, Affiliates or direct or indirect equityholders any obligation to contest any legal restraint relating to the CFIUS Clearance or (B) require any of MultiPlan, PubCo or their respective subsidiaries, Affiliates or direct or indirect equityholders to take any action that such Person reasonably expects would, individually or in the aggregate, interfere in any material respect with (x) its ordinary course operations or (y) the timely consummation of the transactions contemplated by the Merger Agreement and this Investor Rights Agreement (each of the foregoing clauses (A) and (B), an “Adverse Impact”).

 

(e)             Subject to applicable Law and all applicable privileges (including attorney-client privilege) and except as prohibited or requested by CFIUS, each of the Filing Parties will use their respective reasonable best efforts to promptly inform the other Filing Parties of any material communication from CFIUS regarding the Filed Transaction in connection with the CFIUS Filings. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable law or by CFIUS, the Filing Parties will use their respective reasonable best efforts to (i) give each other reasonable advance notice of all meetings with CFIUS relating to the Filed Transaction, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other parties reasonably apprised with respect to any material communications with CFIUS regarding the Filed Transaction, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications required by CFIUS to explain or defend the Filed Transaction, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all such material written communications (including applications, analyses, presentations, memoranda, briefs, arguments and opinions) with CFIUS, and (vi) provide each other (or counsel of each Filing Party, as appropriate) with copies of all material written communications to or from CFIUS relating to the Transaction. Any such disclosures, rights to participate, or provisions of information by one party to the other may be made on a counsel-only basis.

 

(f)              Notwithstanding the foregoing or anything to the contrary contained in this Investor Rights Agreement, in the event that CFIUS notifies the Filing Parties in writing that CFIUS (A) has completed its review or investigation or has determined that it requires no more time to review or investigate and (B) intends to send a report to the President recommending that the President act to suspend or prohibit the Filed Transaction, any of the Filing Parties may request a withdrawal of the CFIUS Filings and none of the Filing Parties shall have any further obligation to seek CFIUS Clearance; and, with respect to MultiPlan or PubCo, to the extent that CFIUS notifies the Filing Parties in writing that CFIUS Clearance will be granted only with the imposition of measures that any of MultiPlan, PubCo or their respective subsidiaries, Affiliates or direct or indirect equityholders reasonably expects would result in an Adverse Impact, MultiPlan and PubCo shall have no further obligation to seek CFIUS Clearance.

 

 

(g)             Notwithstanding anything to the contrary contained in this Section 2.4, in no event shall any Filing Party be required to share with any other party documents or information that it reasonably determines contain confidential business information. Any such documents or information may be provided to CFIUS only.

 

(h)             Any filing fees related to the CFIUS Filings will be paid by PIF. Each Filing Party shall be responsible for its legal and other expenses related to the CFIUS Filings.

 

Article III
REGISTRATION RIGHTS

 

Section 3.1               Shelf Registration.

 

(a)             Filing. PubCo shall file, as soon as is reasonably practicable and in any event within 45 days of the Closing Date, a Shelf Registration Statement covering the resale of all Registrable Securities (except as determined by PubCo pursuant to Section 3.7 as of two Business Days prior to such filing) on a delayed or continuous basis. PubCo shall use its reasonable best efforts to cause such Shelf Registration Statement to become effective under the Securities Act as soon as practicable after such filing, but in no event later than the 105th calendar day (or 165th calendar day if the SEC notifies PubCo that it will "review" the Shelf Registration Statement) after the Closing Date. PubCo shall maintain such Shelf Registration Statement in accordance with the terms of this Investor Rights Agreement, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep such Shelf Registration Statement continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as of which all Registrable Securities registered by such Shelf Registration Statement have been sold or cease to be Registrable Securities. In the event PubCo files a Shelf Registration Statement on Form S-1, PubCo shall use its commercially reasonable efforts to convert such Shelf Registration Statement (and any Subsequent Shelf Registration) to a Shelf Registration Statement on Form S-3 as soon as practicable after PubCo is eligible to use Form S-3. PubCo shall also use its reasonable best efforts to file any replacement or additional Shelf Registration Statement and use reasonable best efforts to cause such replacement or additional Shelf Registration Statement to become effective prior to the expiration of the initial Shelf Registration Statement filed pursuant to this Section 3.1(a).

 

(b)             Subsequent Shelf Registration. If any Shelf Registration Statement ceases to be effective under the Securities Act for any reason at any time while there remain any Registrable Securities registered by such Shelf Registration Statement, PubCo shall use its reasonable best efforts to as promptly as is reasonably practicable cause such Shelf Registration Statement to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration Statement), and shall use its reasonable best efforts to as promptly as is reasonably practicable amend such Shelf Registration Statement in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement or file an additional Registration Statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all outstanding Registrable Securities registered by such prior Shelf Registration Statement. If a Subsequent Shelf Registration is filed, PubCo shall use its reasonable best efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an Automatic Shelf Registration Statement if PubCo is a Well-Known Seasoned Issuer) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as of which all Registrable Securities registered by such Subsequent Shelf Registration have been sold or cease to be Registrable Securities.

 

 

 

(c)               Suspension of Filing or Registration. If PubCo shall furnish to the Shelf Holders, a certificate signed by the chief executive officer or equivalent senior executive of PubCo, stating that the filing, effectiveness or continued use of any Shelf Registration Statement would require PubCo to make an Adverse Disclosure, then PubCo shall have a period of not more than sixty (60) days within which to delay the filing or effectiveness (but not the preparation) of such Shelf Registration Statement or, in the case of a Shelf Registration Statement that has been declared effective, to suspend the use by Shelf Holders of such Shelf Registration Statement (in each case, a “Shelf Suspension”); provided, however, that PubCo shall not be permitted to exercise in any twelve (12) month period (i) more than two (2) Shelf Suspensions pursuant to this Section 3.1(c) and Demand Delays pursuant to Section 3.2(a)(ii) in the aggregate, unless consented to in writing by the Eligible Demand Participation Holders holding a majority of the Registrable Securities held by all Eligible Demand Participation Holders or (ii) aggregate Shelf Suspensions pursuant to this Section 3.1(c) and Demand Delays pursuant to Section 3.2(a)(ii) of more than ninety (90) days. Each Holder shall keep confidential the fact that a Shelf Suspension is in effect, the certificate referred to above and its contents for the permitted duration of the Shelf Suspension or until otherwise notified by PubCo, except (A) for disclosure to such Holder’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by law. In the case of a Shelf Suspension that occurs after the effectiveness of the applicable Shelf Registration Statement, the Shelf Holders agree to suspend use of the applicable Prospectus for the permitted duration of such Shelf Suspension in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the certificate referred to above. PubCo shall immediately notify the Holders or Shelf Holders, as applicable, upon the termination of any Shelf Suspension, and (i) in the case of a Shelf Registration Statement that has not been declared effective, shall promptly thereafter file the Shelf Registration Statement and use its reasonable best efforts to have such Shelf Registration Statement declared effective under the Securities Act and (ii) in the case of an effective Shelf Registration Statement, shall amend or supplement the Prospectus, if necessary, so it does not contain any material misstatement or omission prior to the expiration of the Shelf Suspension and furnish to the Shelf Holders such numbers of copies of the Prospectus as so amended or supplemented as the Shelf Holders may reasonably request. PubCo agrees, if necessary, to supplement or make amendments to the Shelf Registration Statement if required by the registration form used by PubCo for the Registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Shelf Holders Beneficially Owning a majority of the Registrable Securities then outstanding.

 

 

(d)               Shelf Take-Downs.

 

(i)                 Generally. Subject to the terms and provisions of this Article III, following the Initial Lock-Up Period, a Shelf Take-Down Initiating Holder may initiate a Shelf Take-Down that, at the option of such Shelf Take-Down Initiating Holder (A) is in the form of an Underwritten Shelf Take-Down or a Shelf Take-Down that is not an Underwritten Shelf Take-Down and (B) in the case of an Underwritten Shelf Take-Down, is Non-Marketed or Marketed, in each case, as shall be specified in the written demand delivered by the Shelf Take-Down Initiating Holder to PubCo pursuant to the provisions of this Section 3.1(d).

 

(ii)              Underwritten Shelf Take-Downs.

 

(A)             A Shelf Take-Down Initiating Holder may elect in a written demand delivered to PubCo (an “Underwritten Shelf Take-Down Notice”) for any Shelf Take-Down that it has initiated to be in the form of an underwritten offering (an “Underwritten Shelf Take-Down”), and PubCo shall, if so requested, file and effect an amendment or supplement of the Shelf Registration Statement for such purpose as soon as practicable; provided, that any such Underwritten Shelf Take-Down must comply with Section 3.2(d) and involve the offer and sale of Registrable Securities having a reasonably anticipated net aggregate offering price (after deduction of Underwriter commissions) of at least (I) in the case of any Marketed Underwritten Shelf Take-Down, $100,000,000 and (II) in the case of any Non-Marketed Underwritten Shelf Take-Down, $75,000,000 unless such Non-Marketed Underwritten Shelf Take-Down is for all of the Registrable Securities then held by the applicable Shelf Take-Down Initiating Holder and its Permitted Transferees (in which case there is no minimum other than the inclusion of all of such Registrable Securities). The Shelf Holders that own a majority of the Registrable Securities to be offered for sale in such Underwritten Shelf Take-Down shall have the right to select the Underwriter or Underwriters to administer such Underwritten Shelf Take-Down; provided, that such Underwriter or Underwriters shall be reasonably acceptable to PubCo.

 

 

(B)              With respect to any Underwritten Shelf Take-Down (including any Marketed Underwritten Shelf Take-Down), in the event that a Shelf Holder otherwise would be entitled to participate in such Underwritten Shelf Take-Down pursuant to this Section 3.1(d)(ii), Section 3.1(d)(iii) or Section 3.1(d)(iv), as the case may be, the right of such Shelf Holder to participate in such Underwritten Shelf Take-Down shall be conditioned upon such Shelf Holder’s participation in such underwriting and the inclusion of such Shelf Holder’s Registrable Securities in the Underwritten Offering to the extent provided herein. PubCo, together with all Shelf Holders proposing to distribute their securities through such Underwritten Shelf Take-Down, shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected in accordance with Section 3.1(d)(ii)(A). Notwithstanding any other provision of this Section 3.1, if the Underwriter shall advise PubCo that marketing factors (including an adverse effect on the per security offering price) require a limitation of the number of Registrable Securities to be underwritten in an Underwritten Shelf Take-Down, then PubCo shall so advise all Shelf Holders that have requested to participate in such Underwritten Shelf Take-Down, and the number of Registrable Securities that may be included in such Underwritten Shelf Take-Down shall be allocated pro rata among such Shelf Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Shelf Holders at the time of such Underwritten Shelf Take-Down; provided, that any Registrable Securities thereby allocated to a Shelf Holder that exceeds such Shelf Holder’s request shall be reallocated among the remaining Shelf Holders in like manner; and provided, further, that the number of Registrable Securities to be included in such Underwritten Shelf Take-Down shall not be reduced unless all other Equity Securities of PubCo are first entirely excluded from any contemporaneous Underwritten Offering. No Registrable Securities excluded from an Underwritten Shelf Take-Down by reason of the Underwriter’s marketing limitation shall be included in such underwritten offering.

 

(iii)            Marketed Underwritten Shelf Take-Downs. The Shelf Take-Down Initiating Holder submitting an Underwritten Shelf Take-Down Notice shall indicate in such notice that it delivers to PubCo pursuant to Section 3.1(d)(ii) whether it intends for such Underwritten Shelf Take-Down to be Marketed (a “Marketed Underwritten Shelf Take-Down”). Upon receipt of an Underwritten Shelf Take-Down Notice indicating that such Underwritten Shelf Take-Down will be a Marketed Underwritten Shelf Take-Down, PubCo shall promptly (but in any event no later than ten (10) days prior to the expected date of such Marketed Underwritten Shelf Take-Down) give written notice of such Marketed Underwritten Shelf Take-Down to all other Eligible Take-Down Holders of Registrable Securities under such Shelf Registration Statement and any such Eligible Take-Down Holders requesting inclusion in such Marketed Underwritten Shelf Take-Down must respond in writing within five (5) days after the receipt of such notice. Each such Eligible Take-Down Holder that timely delivers any such request shall be permitted to sell in such Marketed Underwritten Shelf Take-Down subject to the terms and conditions of Section 3.1(d)(ii).

 

 

(iv)             Non-Marketed Underwritten Shelf Take-Downs and Non- Underwritten Shelf Take-Downs.

 

(A)             Any Shelf Take-Down Initiating Holder may initiate (x) an Underwritten Shelf Take-Down that is Non-Marketed (a “Non-Marketed Underwritten Shelf Take-Down”) or (y) a Shelf Take-Down that is not an Underwritten Shelf Take-Down (a “Non-Underwritten Shelf Take-Down”) by providing written notice thereof to PubCo and, to the extent required by Section 3.1(d)(iv)(B), PubCo shall provide written notice thereof to all other Eligible Take-Down Holders. Any notice delivered pursuant to the immediately preceding sentence shall include (I) the total number of Registrable Securities expected to be offered and sold in such Shelf Take-Down and (II) the expected timing and plan of distribution of such Shelf Take-Down. For the avoidance of doubt, an Eligible Take-Down Holder that is not a Shelf Take-Down Initiating Holder cannot initiate a Shelf Take-Down.

 

(B)              With respect to each Restricted Shelf Take-Down that is initiated prior to the expiration of the Seller Lock-Up Period, the Shelf Take-Down Initiating Holder initiating such Restricted Shelf Take-Down shall provide written notice (a “Restricted Shelf Take-Down Notice”) of such Restricted Shelf Take-Down to PubCo and PubCo shall provide written notice thereof to all other Eligible Take-Down Holders at least forty-eight (48) hours prior to the expected time of the pricing of the applicable Restricted Shelf Take-Down, which Restricted Shelf Take-Down Notice shall set forth (I) the total number of Registrable Securities expected to be offered and sold in such Restricted Shelf Take-Down, (II) the expected timing and plan of distribution of such Restricted Shelf Take-Down, (III) other than in the case of an LP Distribution (if applicable), an invitation to each Eligible Take-Down Holder to elect (such Eligible Take-Down Holders who make such an election being “Take-Down Tagging Holders” and, together with the Shelf Take-Down Initiating Holders and all other Persons (other than any Affiliates of the Shelf Take-Down Initiating Holders) who otherwise are Transferring, or have exercised a contractual or other right to Transfer, Registrable Securities in connection with such Restricted Shelf Take-Down, the “Restricted Take-Down Selling Holders”) to include in the Restricted Shelf Take-Down Registrable Securities held by such Take-Down Tagging Holder (but subject to Section 3.1(d)(ii)(B)) and (IV) the action or actions required (including the timing thereof) in connection with such Restricted Shelf Take-Down with respect to each Eligible Take-Down Holder that elects to exercise such right (including the delivery of one or more stock certificates representing Registrable Securities of such Eligible Take-Down Holder to be sold in such Restricted Shelf Take-Down).

 

 

(C)              Upon delivery of a Restricted Shelf Take-Down Notice, other than in the case of an LP Distibution, each Eligible Take-Down Holder may elect to sell Registrable Securities in such Restricted Shelf Take-Down, at the same price per Registrable Security and pursuant to the same terms and conditions with respect to payment for the Registrable Securities as agreed to by the Shelf Take-Down Initiating Holders, by sending an irrevocable written notice (a “Take-Down Participation Notice”) to PubCo within the time period specified in such Restricted Shelf Take-Down Notice (which time period shall be at least twenty-four (24) hours prior to the expected time of the pricing of the applicable Restricted Shelf Take-Down), indicating its, his or her election to sell up to the number of Registrable Securities in the Restricted Shelf Take-Down specified by such Eligible Take-Down Holder in such Take-Down Participation Notice (but, in all cases, subject to Section 3.1(d)(ii)(B)). Following the time period specified in such Restricted Shelf Take-Down Notice, each Take-Down Tagging Holder that has delivered a Take-Down Participation Notice shall be permitted to sell in such Restricted Shelf Take-Down on the terms and conditions set forth in the Restricted Shelf Take-Down Notice, concurrently with the Shelf Take-Down Initiating Holders and the other Restricted Take-Down Selling Holders, the number of Registrable Securities calculated pursuant to Section 3.1(d)(ii)(B). It is understood that in order to be entitled to exercise its, his or her right to sell Registrable Securities in a Restricted Shelf Take-Down pursuant to this Section 3.1(d)(iv), each Take-Down Tagging Holder must agree to make the same representations, warranties, covenants, indemnities and agreements, if any, as the Shelf Take-Down Initiating Holders agree to make in connection with the Restricted Shelf Take-Down, with such additions or changes as are required of such Take-Down Tagging Holder by the Underwriters (if applicable).

 

(D)             Notwithstanding the delivery of any Restricted Shelf Take- Down Notice, all determinations as to whether to complete any Restricted Shelf Take-Down and as to the timing, manner, price and other terms and conditions of any Restricted Shelf Take-Down shall be at the sole discretion of the applicable Shelf Take-Down Initiating Holder, and PubCo agrees to cooperate in facilitating any Restricted Shelf Take-Down pursuant to Section 3.1(d). Each of the Eligible Take-Down Holders agrees to reasonably cooperate with each of the other Eligible Take-Down Holders and PubCo to establish notice, delivery and documentation procedures and measures to facilitate such other Eligible Take-Down Holders’ participation in Restricted Shelf Take-Downs pursuant to this Section 3.1(d).

 

(E)              Notwithstanding anything herein to the contrary, prior to the expiration of the Lock-Up Period, no Eligible Take-Down Holder other than the Shelf Take-Down Initiating Holders may effectuate any Shelf Take-Down.

 

 

Section 3.2            Demand Registrations.

 

(a)               Holders’ Demand for Registration. Subject to Section 3.2(d), if, at a time when a Shelf Registration Statement is not effective pursuant to Section 3.1, PubCo shall receive from (x) the H&F Holders at any time following the Initial Lock-Up Period, (y) following the one-year anniversary of the Closing Date, any of the GIC Holders, the LGP Holders or the PIH Rollover Holders or (z) following the Lock-Up Period, the Sponsor or the Founder Holder (the then eligible Holders under clauses (x), (y) and (z), collectively, the “Demand Initiating Holders”) a written demand that PubCo effect any Registration in connection with an Underwritten Offering other than a Shelf Registration or a Shelf Take-Down (a “Demand Registration”) of Registrable Securities held by such Holders having a reasonably anticipated net aggregate offering price (after deduction of Underwriter commissions and offering expenses) of at least $200,000,000, PubCo will:

 

(i)                promptly (but in any event within ten (10) days prior to the date such Demand Registration becomes effective under the Securities Act) give written notice of the proposed Demand Registration to all other Eligible Demand Participation Holders; and

 

(ii)              use its reasonable best efforts to effect such registration as soon as practicable as will permit or facilitate the sale and distribution of all or such portion of such Demand Initiating Holders’ Registrable Securities as are specified in such demand, together with all or such portion of the Registrable Securities of any other Eligible Demand Participation Holders joining in such demand as are specified in a written demand received by PubCo within five (5) days after such written notice is given; provided, that PubCo shall not be obligated to file any Registration Statement or other disclosure document pursuant to this Section 3.2 (but shall be obligated to continue to prepare such Registration Statement or other disclosure document) if PubCo shall furnish to such Eligible Demand Participation Holders a certificate signed by the chief executive officer or equivalent senior executive of PubCo, stating that the filing or effectiveness of such Registration Statement would require PubCo to make an Adverse Disclosure, in which case PubCo shall have an additional period (each, a “Demand Delay”) of not more than sixty (60) days within which to file such Registration Statement; provided, however, that PubCo shall not exercise, in any twelve (12) month period, (x) more than two (2) Demand Delays pursuant to this Section 3.2(a)(ii) and Shelf Suspensions pursuant to Section 3.1(c) in the aggregate, unless consented in writing by the Eligible Demand Participation Holders that own a majority of the Registrable Securities held by all Eligible Demand Participation Holders or (y) aggregate Demand Delays pursuant to this Section 3.2(a)(ii) and Shelf Suspensions pursuant to Section 3.1(c) of more than ninety (90) days. Each Eligible Demand Participation Holder shall keep confidential the fact that a Demand Delay is in effect, the certificate referred to above and its contents for the permitted duration of the Demand Delay or until otherwise notified by PubCo, except (A) for disclosure to such Eligible Demand Participation Holder’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by law.

 

 

(b)               Underwriting. If the Demand Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of an Underwritten Offering, they shall so advise PubCo as part of their demand made pursuant to this Section 3.2, and PubCo shall include such information in the written notice referred to in Section 3.2(a)(i). In such event, the right of any Holder to registration pursuant to this Section 3.2 shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in the Underwritten Offering to the extent provided herein. PubCo, together with all holders of Registrable Securities of PubCo proposing to distribute their securities through such Underwritten Offering, shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected by Eligible Demand Participation Holders that own a majority of the Registrable Securities to be offered for sale in such Underwritten Offering and reasonably satisfactory to PubCo. Notwithstanding any other provision of this Section 3.2, if the Underwriter shall advise PubCo that marketing factors (including an adverse effect on the per security offering price) require a limitation of the number of Registrable Securities to be underwritten, then PubCo shall so advise all Eligible Demand Participation Holders that have requested to participate in such offering, and the number of Registrable Securities that may be included in the Demand Registration and Underwritten Offering shall be allocated pro rata among such Eligible Demand Participation Holders and other holders of Registrable Securities exercising a contractual or other right to dispose of Registrable Securities in such Underwritten Offering thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such persons at the time of filing the Registration Statement; provided, that any Registrable Securities thereby allocated to any such person that exceed such person’s request shall be reallocated among the remaining requesting Eligible Demand Participation Holders and other requesting holders of Registrable Securities in like manner; and provided, further, that the number of Registrable Securities to be included in such Underwritten Offering shall not be reduced unless all other Equity Securities of PubCo are first entirely excluded from the Underwritten Offering. No Registrable Securities excluded from the Underwritten Offering by reason of the Underwriter’s marketing limitation shall be included in such Demand Registration. If the Underwriter has not limited the number of Registrable Securities to be underwritten, PubCo may include securities for its own account (or for the account of any other Persons) in such Demand Registration if the Underwriter so agrees and if the number of Registrable Securities would not thereby be limited.

 

(c)               Effective Registration. PubCo shall be deemed to have effected a Demand Registration if the Registration Statement pursuant to such registration is declared effective by the SEC and remains effective for not less than one hundred eighty (180) days (or such shorter period as will terminate when all Registrable Securities covered by such Registration Statement have been sold or withdrawn), or, if such Registration Statement relates to an Underwritten Offering, such longer period as, in the opinion of counsel for the Underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an Underwriter or dealer (the applicable period, the “Demand Period”). No Demand Registration shall be deemed to have been effected if (i) during the Demand Period such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court or (ii) the conditions specified in the underwriting agreement, if any, entered into in connection with such Registration are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by a participating Holder.

 

 

(d)               Restrictions on Registered Offerings. Notwithstanding the rights and obligations set forth in Section 3.1 and/or Section 3.2, in no event shall PubCo be obligated to take any action to effect:

 

(i)              any Demand Registration or Shelf Take-Down at the request of any Holder prior to the expiration of the Initial Lock-Up Period;

 

(ii)             any Demand Registration or Shelf Take-Down at the request of the Sponsor or the Founder Holder prior to the expiration of the Lock-Up Period;

 

(iii)            any Demand Registration or Underwritten Shelf Take-Down at the request of the GIC Holders, except if there have been no Demand Registrations and no Shelf Take-Downs prior to the one-year anniversary of the Closing Date, the GIC Holders (collectively) shall be entitled to initiate one (1) Demand Registration or Underwritten Shelf Take-Down following the one-year anniversary of the Closing Date pursuant to the terms of this Article III;

 

(iv)            any Demand Registration or Underwritten Shelf Take-Down at the request of the LGP Holders, except if there have been no Demand Registrations and no Shelf Take-Downs prior to the one-year anniversary of the Closing Date, the LGP Holders (collectively) shall be entitled to initiate one (1) Demand Registration or Underwritten Shelf Take-Down following the one-year anniversary of the Closing Date pursuant to the terms of this Article III;

 

(v)             any Demand Registration or Underwritten Shelf Take-Down at the request of the PIH Rollover Holders, except if there have been no Demand Registrations and no Shelf Take-Downs prior to the one-year anniversary of the Closing Date, the PIH Rollover Holders (collectively) shall be entitled to initiate one (1) Demand Registration or Underwritten Shelf Take-Down following the one-year anniversary of the Closing Date pursuant to the terms of this Article III;

 

(vi)           any Demand Registration or Underwritten Shelf Take-Down at the request of the Sponsor or the Founder Holder, except the Sponsor and the Founder Holder (collectively) shall be entitled to initiate up to an aggregate of two (2) Demand Registrations or Underwritten Shelf Take-Downs following the Lock-Up Period pursuant to the terms of this Article III;

 

(vii)          any Non-Underwritten Shelf Take-Down at the request of any of the GIC Holders, the LGP Holders or the PIH Rollover Holders prior to the expiration of the Seller Lock-Up Period; or

 

(viii)         any Demand Registration while a Shelf Registration Statement remains outstanding in accordance with the terms of this Investor Rights Agreement.

 

 

Notwithstanding anything to the contrary in this Section 3.2(d), in the event that the Demand Initiating Holders or Shelf Take-Down Initiating Holders, as applicable, do not sell at least seventy-five percent (75%) of the Registrable Securities requested to be sold in a Demand Registration or an Underwritten Shelf Take-Down as a result of the Underwriter advising PubCo that marketing factors (including an adverse effect on the per security offering price) require a limitation of the number of Registrable Securities to be underwritten, then for purposes of clause (iii), (iv) or (v) above (as applicable) such Demand Registration or Underwritten Shelf Take-Down (as applicable) shall not be considered a Demand Registration or Underwritten Shelf Take-Down effected at the request of such Demand Initiating Holder or Shelf Take-Down Initiating Holder.

 

Section 3.3            Piggyback Registration.

 

(a)               If at any time or from time to time PubCo shall determine to register any of its Equity Securities, either for its own account or for the account of security holders (other than in (1) a registration relating solely to employee benefit plans, (2) a registration statement on Form S-4 or S-8 (or such other similar successor forms then in effect under the Securities Act), (3) a registration pursuant to which PubCo is offering to exchange its own securities for other securities, (4) a registration statement relating solely to dividend reinvestment or similar plans, (5) a Shelf Registration Statement pursuant to which only the initial purchasers and subsequent transferees of debt securities of PubCo or any of its subsidiaries that are convertible for Common Stock and that are initially issued pursuant to Rule 144A and/or Regulation S (or any successor provision) of the Securities Act may resell such notes and sell the Common Stock into which such notes may be converted, (6) a registration pursuant to Section 3.1, Section 3.2 or Section 3.15 hereof or (7) a registration expressly contemplated by the Subscription Agreements) PubCo will:

 

(i)                 promptly (but in no event less than ten (10) days before the effective date of the relevant Registration Statement) give to each Holder written notice thereof; and

 

(ii)              include in such Registration (and any related qualification under state securities laws or other compliance), and in any Underwritten Offering involved therein, all the Registrable Securities specified in a written request or requests made within five (5) days after receipt of such written notice from PubCo by any Holder or Holders except as set forth in Section 3.3(b) below.

 

Notwithstanding anything herein to the contrary, this Section 3.3 shall not apply (i) prior to the expiration of the Lock-Up Period in respect of any Holder, unless (x) one or more of the H&F Holders elect to participate in such registration, in which case this Section 3.3 shall only apply to Eligible Demand Participation Holders or (y) the H&F Holders, in their sole discretion, elect by written notice to PubCo for this Section 3.3 to apply to the Registrable Securities of any one or more other Holders specified in such notice, (ii) to any Shelf Take-Down irrespective of whether such Shelf Take-Down is an Underwritten Shelf Take-Down or not an Underwritten Shelf Take-Down or (iii) following the Seller Lock-Up Period, to any LP Distribution (if applicable).

 

(b)               Underwriting. If the Registration of which PubCo gives notice pursuant to Section 3.3(a) is for an Underwritten Offering, PubCo shall so advise the Holders as a part of the written notice given pursuant to Section 3.3(a)(i). In such event the right of any Holder to participate in such registration pursuant to this Section 3.3 shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in the Underwritten Offering to the extent provided herein. All Holders proposing to dispose of their Registrable Securities through such Underwritten Offering, together with PubCo and the other parties distributing their Equity Securities of PubCo through such Underwritten Offering, shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Underwritten Offering by PubCo. Notwithstanding any other provision of this Section 3.3, if the Underwriters shall advise PubCo that marketing factors (including, without limitation, an adverse effect on the per security offering price) require a limitation of the number of Registrable Securities to be underwritten, then PubCo may limit the number of Registrable Securities to be included in the Registration and Underwritten Offering as follows:

 

 

(i)                 If the Registration is initiated and undertaken for PubCo’s account, PubCo shall so advise all Holders of Registrable Securities that have requested to participate in such offering, and the number of Registrable Securities that may be included in the Registration and Underwritten Offering shall be allocated in the following manner: (A) first, to PubCo, (B) second, to the Holders of Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by such Holders and (C) third, to other holders of Equity Securities of PubCo exercising a contractual or other right to dispose of such Equity Securities in such Underwritten Offering on a pro rata basis based on the total number of Equity Securities of PubCo held by such persons; provided, that any Registrable Securities or Equity Securities thereby allocated to any such person that exceed such person’s request shall be reallocated among the remaining requesting Holders or other requesting holders, as applicable, in like manner.

 

(ii)              If the Registration is initiated and undertaken at the request of one or more holders of Equity Securities of PubCo who are not Holders, PubCo shall so advise all Holders of Registrable Securities that have requested to participate in such offering, and the number of Registrable Securities that may be included in the Registration and Underwritten Offering shall be allocated in the following manner: (A) first, to the initiating holders of Equity Securities of PubCo exercising a contractual or other right to dispose of such Equity Securities in such Underwritten Offering, on a pro rata basis based on the total number of Equity Securities of PubCo, (B) second, to the Holders of Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by such Holders, (C) third, to PubCo, (D) fourth, to other holders of Equity Securities of PubCo exercising a contractual or other right to dispose of such Equity Securities in such Underwritten Offering on a pro rata basis based on the total number of Equity Securities of PubCo held by such persons; provided, that any Registrable Securities or Equity Securities thereby allocated to any such person that exceed such person’s request shall be reallocated among the remaining requesting Holders or other requesting holders, as applicable, in like manner.

 

 

 

No such reduction shall reduce the amount of Registrable Securities of the selling Holders included in the Registration below twenty-five percent (25%) of the total amount of Equity Securities included in such Registration. No securities excluded from the Underwritten Offering by reason of the Underwriter’s marketing limitation shall be included in such Registration.

 

(c)             Right to Terminate Registration. PubCo shall have the right to terminate or withdraw any Registration initiated by it under this Section 3.3 prior to the effectiveness of such Registration whether or not any Holder has elected to include Registrable Securities in such Registration.

 

Section 3.4            Expenses of Registration. All Registration Expenses incurred in connection with all Registrations or other Transfers effected pursuant to or permitted by this Investor Rights Agreement (including the PIH Distribution and any LP Distribution), shall be borne by PubCo. It is acknowledged by the Holders that the Holders selling or otherwise Transferring any Registrable Securities in any Registration or Transfer shall bear all incremental selling expenses relating to the sale or Transfer of such Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing such Holders, in each case pro rata based on the number of Registrable Securities that such Holders have sold or Transferred in such Registration.

 

Section 3.5             Obligations of PubCo. Whenever required under this Article III to effect the Registration of any Registrable Securities, PubCo shall, as expeditiously as reasonably possible:

 

(a)             prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Secuirities covered by such Registration Statement have been sold;

 

(b)             prepare and file with the SEC such amendments, post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by sellers thereof set forth in such Registration Statement;

 

(c)             permit any Holder that (in the good faith reasonable judgment of Seller Representative) might be deemed to be a controlling person of PubCo to participate in good faith in the preparation of such Registration Statement and to cooperate in good faith to include therein material, furnished to PubCo in writing, that in the reasonable judgment of such Holder and its counsel should be included;

 

(d)             furnish to the Holders such numbers of copies of the Registration Statement and the related Prospectus, including all exhibits thereto and documents incorporated by reference therein and a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;

 

 

(e)             in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering; each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;

 

(f)             notify each Holder of Registrable Securities covered by such Registration Statement as soon as reasonably possible after notice thereof is received by PubCo of any written comments by the SEC or any request by the SEC or any other federal or state Governmental Entity for amendments or supplements to such Registration Statement or such Prospectus or for additional information;

 

(g)             notify each Holder of Registrable Securities covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;

 

(h)             notify each Holder of Registrable Securities covered by such Registration Statement as soon as reasonably practicable after notice thereof is received by PubCo of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, or any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

(i)              use its reasonable best efforts to prevent the issuance of any stop order suspending the effectiveness of any Registration Statement or of any order preventing or suspending the use of any preliminary or final Prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable;

 

(j)              make available for inspection by each Holder including Registrable Securities in such Registration, any Underwriter participating in any distribution pursuant to such Registration, and any attorney, accountant or other agent retained by such Holder or Underwriter, all financial and other records, pertinent corporate documents and properties of PubCo, as such parties may reasonably request, and cause PubCo’s officers, directors and employees to supply all information reasonably requested by any such Holder, Underwriter, attorney, accountant or agent in connection with such Registration Statement;

 

(k)             use its reasonable best efforts to register or qualify, and cooperate with the Holders of Registrable Securities covered by such Registration Statement, the Underwriters, if any, and their respective counsel, in connection with the Registration or qualification of such Registrable Securities for offer and sale under the “Blue Sky” or securities laws of each state and other jurisdiction of the United States as any such Holder or Underwriters, if any, or their respective counsel reasonably request in writing, and do any and all other things reasonably necessary or advisable to keep such Registration or qualification in effect for such period as required by Section 3.1(b) and Section 3.2(c), as applicable; provided, that PubCo shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or take any action which would subject it to taxation or service of process in any such jurisdiction where it is not then so subject;

 

 

(l)             in the case of an Underwritten Offering, obtain for delivery to the Holders of Registrable Securities covered by such Registration Statement and to the Underwriters an opinion or opinions from counsel for PubCo, dated the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Holders or Underwriters, as the case may be, and their respective counsel;

 

(m)            in the case of an Underwritten Offering, obtain for delivery to PubCo and the Underwriters, with copies to the Holders of Registrable Securities included in such Registration, a cold comfort letter from PubCo’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing Underwriter or Underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;

 

(n)             use its reasonable best efforts to list the Registrable Securities that are covered by such Registration Statement with any securities exchange or automated quotation system on which the Common Stock or other Equity Securities of PubCo, as applicable, are then listed;

 

(o)             provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;

 

(p)             cooperate with Holders including Registrable Securities in such Registration and the managing Underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, such certificates to be in such denominations and registered in such names as such Holders or the managing Underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities;

 

(q)             use its reasonable best efforts to comply with all applicable securities laws and make available to its Holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;

 

(r)              in the case of an Underwritten Offering that is Marketed, cause the senior executive officers of PubCo to participate in the customary “road show” presentations that may be reasonably requested by the Underwriters and otherwise to facilitate, cooperate with and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and

 

 

(s)             otherwise, in good faith, reasonably cooperate with, and take such customary actions as may reasonably be requested by, the Holders, in connection with such Registration.

 

Section 3.6              Indemnification.

 

(a)             PubCo will, and does hereby undertake to, indemnify and hold harmless each Holder of Registrable Securities and each of such Holder’s officers, directors, trustees, employees, partners, managers, members, equityholders, beneficiaries, affiliates and agents and each Person, if any, who controls such Holder, within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any Registration, qualification, compliance or sale effected pursuant to this Article III, and each Underwriter, if any, and each Person who controls any Underwriter, of the Registrable Securities held by or issuable to such Holder, against all claims, losses, damages and liabilities (or actions in respect thereto) to which they may become subject under the Securities Act, the Exchange Act, or other federal or state law arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular, free writing prospectus or other similar document (including any related Registration Statement, notification, or the like) incident to any such Registration, qualification, compliance or sale effected pursuant to this Article III, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, (B) any violation or alleged violation by PubCo of any Law applicable to PubCo in connection with any such Registration, qualification, compliance or sale, or (C) any failure to register or qualify Registrable Securities in any state where PubCo or its agents have affirmatively undertaken or agreed in writing (including pursuant to Section 3.5(k)) that PubCo (the undertaking of any Underwriter being attributed to PubCo) will undertake such Registration or qualification on behalf of the Holders of such Registrable Securities (provided, that in such instance PubCo shall not be so liable if it has undertaken its reasonable best efforts to so register or qualify such Registrable Securities) and will reimburse, as incurred, each such Holder, each such Underwriter and each such director, officer, trustee, employee, partner, manager, member, equityholder, beneficiary, affiliate, agent and controlling person, for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided, that PubCo will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission made in reliance and in conformity with written information furnished to PubCo by such Holder or Underwriter expressly for use therein.

 

(b)             Each Holder (if Registrable Securities held by or issuable to such Holder are included in such Registration, qualification, compliance or sale pursuant to this Article III) does hereby undertake to indemnify and hold harmless, severally and not jointly, PubCo, each of its officers, directors, employees, equityholders, affiliates and agents and each Person, if any, who controls PubCo within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, each Underwriter, if any, and each Person who controls any Underwriter, of PubCo’s Equity Securities covered by such a Registration Statement, and each other Holder, each of such other Holder’s officers, directors, employees, partners, equityholders, affiliates and agents and each Person, if any, who controls such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement, prospectus, offering circular, free writing prospectus or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, and will reimburse, as incurred, PubCo, each such Underwriter, each such other Holder, and each such officer, director, trustee, employee, partner, equityholder, beneficiary, affiliate, agent and controlling person of the foregoing, for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) was made in such Registration Statement, prospectus, offering circular, free writing prospectus or other document, in reliance upon and in conformity with written information that (i) relates to such Holder in its capacity as a selling security holder and (ii) was furnished to PubCo by such Holder expressly for use therein; provided, however, that the aggregate liability of each Holder hereunder shall be limited to the net proceeds after underwriting discounts and commissions received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. It is understood and agreed that the indemnification obligations of each Holder pursuant to any underwriting agreement entered into in connection with any Registration Statement shall be limited to the obligations contained in this Section 3.6(b).

 

 

(c)             Each party entitled to indemnification under this Section 3.6 (the “Indemnified Party”) shall give notice to the party required to provide such indemnification (the “Indemnifying Party”) of any claim as to which indemnification may be sought promptly after such Indemnified Party has actual knowledge thereof, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be subject to approval by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense at the Indemnifying Party’s expense if representation of such Indemnified Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding; and provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3.6, except to the extent that such failure to give notice materially prejudices the Indemnifying Party in the defense of any such claim or any such litigation. An Indemnifying Party, in the defense of any such claim or litigation, may, without the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that (i) includes as a term thereof the giving by the claimant or plaintiff therein to such Indemnified Party of an unconditional release from all liability with respect to such claim or litigation and (ii) does not include any recovery (including any statement as to or an admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party) other than monetary damages, and provided, that any sums payable in connection with such settlement are paid in full by the Indemnifying Party.

 

(d)             In order to provide for just and equitable contribution in case indemnification is prohibited or limited by law, the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and such Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such actions; provided, however, that, in any case, (i) no Holder will be required to contribute any amount in excess of the net proceeds after Underwriting discounts and commissions received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

 

 

(e)            The indemnities provided in this Section 3.6 shall survive the Transfer of any Registrable Securities by such Holder.

 

Section 3.7            Information by Holder. The Holder or Holders of Registrable Securities included in any Registration shall furnish to PubCo such information regarding such Holder or Holders and the distribution proposed by such Holder or Holders as PubCo may reasonably request in writing and as shall be required in connection with any Registration, qualification or compliance referred to in this Article III. Each Holder agrees, if requested in writing by PubCo, to represent to PubCo the total number of Registrable Securities held by such Holder in order for PubCo to make determinations under this Investor Rights Agreement, including for purposes of Section 3.9 hereof. Notwithstanding anything to the contrary contained in this Investor Rights Agreement, if any Holder does not provide PubCo with information requested pursuant to this Section 3.7, PubCo may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if PubCo determines, based on the advice of outside counsel, that such information is necessary to effect the Registration and such Holder continues thereafter to withhold such information. No Person may participate in any Underwritten Offering of Equity Securities of PubCo pursuant to a Registration under this Investor Rights Agreement unless such Person completes and executes all customary questionnaires, powers of attorney, custody agreements, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. Subject to the minimum thresholds set forth in Section 3.1(d)(ii) and Section 3.2(a) of this Investor Rights Agreement, the exclusion of a Holder’s Registrable Securities as a result of this Section 3.7 shall not affect the registration of the other Registrable Securities to be included in such Registration.

 

Section 3.8              Delay of Registration. No Holder shall have any right to obtain, and hereby waives any right to seek, an injunction restraining or otherwise delaying any such Registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Article III.

 

 

Section 3.9              Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without Registration, PubCo agrees to use its reasonable best efforts to:

 

(a)            make and keep current public information available, within the meaning of Rule 144 (or any similar or analogous rule) promulgated under the Securities Act, at all times;

 

(b)             file with the SEC, in a timely manner, all reports and other documents required of PubCo under the Securities Act and Exchange Act; and

 

(c)             so long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request a written statement by PubCo as to its compliance with the reporting requirements of said Rule 144 (at any time commencing after (x) in the case of the Sponsor and the Founder Holder, the Lock-Up Period, (y) in the case of the H&F Holders or the Management Holders, the one-year anniversary of the Closing Date, and (z) in the case of the Sellers (other than the H&F Holders and the Management Holders) who are Holders, the Seller Lock-Up Period), the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of PubCo and such other reports and documents as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without Registration.

 

Section 3.10            “Market Stand Off” Agreement. Each Holder hereby agrees with PubCo that, with respect to Underwritten Offerings initiated by a Holder only, during such period (which period shall in no event exceed 90 days) following the effective date of a Registration Statement of PubCo (or, in the case of an Underwritten Shelf Take-Down, the date of the filing of a preliminary Prospectus or Prospectus supplement relating to such Underwritten Offering (or if there is no such filing, the first contemporaneous press release announcing commencement of such Underwritten Offering)) as the Holders that own a majority of the Registrable Securities participating in such Underwritten Offering may agree to with the Underwriter or Underwriters of such Underwritten Offering (a “Market Stand-Off Period”), such Holder or its Affiliates shall not sell, pledge, hypothecate, transfer, make any short sale of, loan, grant any option or right to purchase of, or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Securities held by it at any time during such period except Registrable Securities included in such Registration and shares of Common Stock subject to a Charitable Distribution in connection with such Underwritten Offering. In connection with any Underwritten Offering contemplated by this Section 3.10, PubCo shall use reasonable best efforts to cause each director and executive officer of PubCo to execute a customary lock-up for the Market Stand-Off Period. Each Holder agrees with PubCo that it shall deliver to the Underwriter or Underwriters for any such Underwritten Offering a customary agreement (with customary terms, conditions and exceptions) that is substantially similar to the agreement delivered to the Underwriter or Underwriters by the Holders that own a majority of the Registrable Securities participating in such Registration reflecting their agreement set forth in this Section 3.10; provided, that such agreement shall not be materially more restrictive than any similar agreement entered into by PubCo’s directors and executive officers participating in such Underwritten Offering; provided, further, that such agreement shall not be required unless all Holders are required to enter into similar agreements; provided, further, that such agreement shall provide that any early release of any Holder from the provisions of the terms of such agreement shall be on a pro rata basis among all Holders.

 

 

Section 3.11            Other Obligations. In connection with a Transfer of Registrable Securities exempt from Section 5 of the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within the Prospectus and pursuant to the Registration Statement of which such Prospectus forms a part, PubCo shall, subject to applicable Law, as interpreted by PubCo with the advice of counsel, and the receipt of any customary documentation required from the applicable Holders in connection therewith, (a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being Transferred and (b) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under clause (a). In addition, PubCo shall cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with the aforementioned Transfers; provided, however, that PubCo shall have no obligation to participate in any “road shows” or assist with the preparation of any offering memoranda or related documentation with respect to any Transfer of Registrable Securities in any transaction that does not constitute an Underwritten Offering.

 

Section 3.12            Other Registration Rights. Other than the registration rights set forth in the Original RRA and in the Subscription Agreements, PubCo represents and warrants that no Person, other than a Holder of Registrable Securities pursuant to this Investor Rights Agreement, has any right to require PubCo to register any securities of PubCo for sale or to include such securities of PubCo in any Registration Statement filed by PubCo for the sale of securities for its own account or for the account of any other Person. Further, each of PubCo, the Sponsor and the Founder Holder represents and warrants that this Investor Rights Agreement supersedes any other registration rights agreement or agreement (including the Original RRA), other than the Subscription Agreements.

 

Section 3.13           Term. Article III shall terminate with respect to any Holder on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.6 shall survive any such termination with respect to such Holder.

 

Section 3.14            Termination of Original RRA. Upon the Closing, PubCo and the Sponsor hereby agree that the Original RRA and all of the respective rights and obligations of the parties thereunder are hereby terminated in their entirety and shall be of no further force or effect.

 

Section 3.15           PIF Registration Right. Without limiting any rights of PIF pursuant to any Subscription Agreement between PIF and PubCo, following the twelve (12) month anniversary of the Closing Date, PIF may initiate one (1) Underwritten Offering of Common Stock held by PIF having a reasonably anticipated net aggregate offering price (after deduction of Underwriter commissions and offering expenses) of at least $100,000,000 upon written notice to PubCo, which Underwritten Offering may be Marketed or Non-Marketed and will be pursuant to a Shelf Registration Statement to the extent a Shelf Registration Statement remains effective with respect to the Common Stock of PIF as of such time (a “PIF Demand”). The terms of Section 3.2(a)(ii), Section 3.2(c), Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and Section 3.11 shall apply to such PIF Demand, mutatis mutandis. PIF shall have the right to select the Underwriter or Underwriters to administer such Underwritten Offering; provided, that such Underwriter or Underwriters shall be reasonably acceptable to PubCo. If the Underwriter or Underwriters shall advise PubCo that marketing factors (including an adverse effect on the per security offering price) require a limitation of the number of shares of Common Stock of PIF to be underwritten in connection with the PIF Demand, then PubCo shall so advise PIF, and the number of shares of Common Stock of PIF that may be included in the Underwritten Offering shall be reduced accordingly.

 

 

Article IV
LOCK-UP

 

Section 4.1              Lock-Up.

 

(a)             Each Holder (including the Founder Holder) severally, and not jointly, agrees with PubCo not to effect any Transfer, or make a public announcement of any intention to effect such Transfer, of any Lock-Up Shares (as defined below) Beneficially Owned or otherwise held by such Person during the Lock-Up Period (as defined below); provided, that such prohibition shall not apply to Transfers (i) permitted pursuant to Section 4.2, (ii) permitted pursuant to Article III, (iii) by PIH pursuant to the PIH Distribution, (iv) by the Sellers (pro rata in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Sellers at the applicable time) to any party to any Subscription Agreement or Non-Redemption Agreement in accordance with the terms of such Subscription Agreement or Non-Redemption Agreement, (v) by any Seller following the Seller Lock-Up Period (as defined below), including in any LP Distribution, (vi) by any Management Holder following the Management Lock-Up Period or (vii) of any Warrants by the Sponsor, other than the Locked-Up Warrants. For the avoidance of doubt, each Holder agrees with PubCo not to effect an LP Distribution during the Seller Lock-Up Period, and the Sponsor and Founder Holder agree with PubCo not to effect an LP Distribution during the Lock-Up Period; provided, in each such case, it is understood and agreed that, notwithstanding anything to the contrary in this Investor Rights Agreement, Sponsor may Transfer any Warrants that it owns during the Lock-Up Period, other than the Locked-Up Warrants, including through an LP Distribution. To the extent (I) PubCo permits any H&F Holder to make any Transfer of a portion of its Lock-Up Shares prior to the expiration of the Seller Lock-Up Period that is otherwise prohibited by this Section 4.1 and (II) any of the other Sellers are not permitted to participate in such Transfer with a proportionate amount of their respective Lock-Up Shares, then PubCo shall concurrently release a proportionate amount of such other Sellers' respective Lock-Up Shares from the restrictions on Transfer set forth in this Section 4.1. The “Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is 18 months following the Closing Date. The “Seller Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is the earlier of (x) 18 months following the Closing Date and (y) the later of (A) the one year anniversary of the Closing Date and (B) the expiration of the applicable Market Stand-Off Period in respect of the second Underwritten Shelf Take-Down initiated by the H&F Holders after the date hereof; provided that, in the case of the foregoing clause (y), the H&F Holders may elect, upon written notice delivered to PubCo in advance of the date contemplated by the foregoing clause (y), in their sole discretion, to extend the Seller Lock-Up Period until the date that is 18 months following the Closing Date; provided, further, that, if the Seller Lock-Up Period is waived or reduced in whole or in part with respect to the Lock-Up Shares held by any LGP Holder, GIC Holder or PIH Rollover Holder, then all other LGP Holders, GIC Holders and PIH Rollover Holders shall be entitled to a proportionate waiver or reduction with respect to their respective Lock-Up Shares. The “Initial Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is six (6) months following the Closing Date. The “Management Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is twelve (12) months following the Closing Date. The “Lock-Up Shares” means the Registrable Securities held by the Holders as of the Closing Date or received by the Holders in the PIH Distribution, including Common Stock and the Locked-Up Warrants (but not including, for the avoidance of doubt, any Warrants other than the Locked-Up Warrants).

 

 

(b)            During the Lock-Up Period (or (x) in the case of the H&F Holders, the Initial Lock-Up Period, (y) in the case of the Management Holders, the Management Lock-Up Period or (z) in the case of the Sellers (other than the H&F Holders and the Management Holders) who are Holders, the Seller Lock-Up Period), any purported Transfer of Lock-Up Shares not in accordance with this Investor Rights Agreement shall be null and void, and PubCo shall refuse to recognize any such Transfer for any purpose.

 

(c)             The Holders acknowledge and agree that, notwithstanding anything to the contrary contained in this Investor Rights Agreement, the Lock-Up Shares Beneficially Owned by such Person shall remain subject to any restrictions on Transfer under applicable securities Laws of any Governmental Entity, including all applicable holding periods under the Securities Act and other rules of the SEC.

 

Section 4.2            Permitted Transfers. Notwithstanding anything to the contrary contained in this Investor Rights Agreement, during the Lock-Up Period, the Holders may Transfer, without the consent of PubCo, any of such Person’s Lock-Up Shares to (i) any of such Person’s Permitted Transferees, upon written notice to PubCo and, in the case of such a Transfer by the Sponsor (including a Founder Holder), the Seller Representative, and in the case of such a Transfer by a Seller or its Permitted Transferees, the Sponsor, (ii) (a) in the case of a Management Holder, a charitable organization, upon written notice to PubCo, (b) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (c) in the case of an individual, pursuant to a qualified domestic relations order; or (d) pursuant to any liquidation, merger, stock exchange or other similar transaction which results in all of PubCo’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Business Combination or (iii) a charitable organization through a Charitable Distribution (which for avoidance of doubt shall be deemed separate from a Transfer pursuant to clause (ii)(a) above); provided, that in connection with any Transfer of such Lock-Up Shares pursuant to clause (ii) above, (x) the restrictions and obligations contained in Section 4.1 and this Section 4.2 will continue to apply to such Lock-Up Shares after any Transfer of such Lock-Up Shares and such Transferee shall agree to be bound by such restrictions and obligations in writing and acknolwedged by PubCo, and (y) the Transferee of such Lock-Up Shares shall have no rights under this Investor Rights Agreement, unless, for the avoidance of doubt, such Transferee is a Permitted Transferee in accordance with this Investor Rights Agreement. Any Transferee of Lock-Up Shares who is a Permitted Transferee of the Transferor pursuant to this Section 4.2 shall be required, at the time of and as a condition to such Transfer, to become a party to this Investor Rights Agreement by executing and delivering a joinder in the form attached to this Investor Rights Agreement as Exhibit A, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of this Investor Rights Agreement. Notwithstanding the foregoing provisions of this Section 4.2, a Holder may not make a Transfer to a Permitted Transferee if such Transfer has as a purpose the avoidance of or is otherwise undertaken in contemplation of avoiding the restrictions on Transfers in this Agreement (it being understood that the purpose of this provision includes prohibiting the Transfer to a Permitted Transferee (A) that has been formed to facilitate a material change with respect to who or which entities Beneficially Own the underlying Lock-Up Shares, or (B) followed by a change in the relationship between the Holder and the Permitted Transferee (or a change of control of such Holder or Permitted Transferee) after the Transfer with the result and effect that the Holder has indirectly made a Transfer of Lock-Up Shares by using a Permitted Transferee, which Transfer would not have been directly permitted under this Article IV had such change in such relationship occurred prior to such Transfer).

 

 

 

Article V
GENERAL PROVISIONS

 

Section 5.1           Assignment; Successors and Assigns; No Third Party Beneficiaries.

 

(a)          Except as otherwise permitted pursuant to this Investor Rights Agreement, no Party may assign such Party’s rights and obligations under this Investor Rights Agreement, in whole or in part, without the prior written consent of the Seller Representative. Any such assignee may not again assign those rights, other than in accordance with this Article V. Any attempted assignment of rights or obligations in violation of this Article V shall be null and void.

 

(b)         Notwithstanding anything to the contrary contained in this Investor Rights Agreement (other than the succeeding sentence of this Section 5.1(b)), (i) prior to the expiration of the Lock-Up Period (or (A) in the case of the H&F Holders, the Initial Lock-Up Period, (B) in the case of the Management Holders, the Management Lock-Up Period or (C) in the case of the Sellers (other than the H&F Holders and the Management Holders) who are Holders, the Seller Lock-Up Period) to the extent applicable to such Holder, no Holder may Transfer such Holder’s rights or obligations under this Investor Rights Agreement in connection with a Transfer of such Holder’s Registrable Securities, in whole or in part, except in connection with a Transfer pursuant to Section 4.2; and (ii) after the expiration of the Lock-up Period (or (A) in the case of the H&F Holders, the Initial Lock-Up Period, (B) in the case of the Management Holders, the Management Lock-Up Period or (C) in the case of the Sellers (other than the H&F Holders and the Management Holders) who are Holders, the Seller Lock-Up Period) to the extent applicable to such Holder, a Holder may Transfer such Holder’s rights or obligations under this Investor Rights Agreement in connection with a Transfer of such Holder’s Registrable Securities, in whole or in part, to (x) any of such Holder’s Permitted Transferees (other than any charitable organization), or (y) any Person with the prior written consent of PubCo. In no event can the Sponsor (including the Founder Holder), the Sellers or the Seller Representative assign any of such Person’s rights under Section 2.1. Any Transferee of Registrable Securities (other than pursuant to an effective registration statement under the Securities Act, pursuant to a Rule 144 transaction or pursuant to any In-Kind Distribution) shall, except as otherwise expressly stated herein, have all the rights and be subject to all of the obligations of the Transferor Holder under this Investor Rights Agreement and shall be required, at the time of and as a condition to such Transfer, to become a party to this Investor Rights Agreement by executing and delivering a joinder in the form attached to this Investor Rights Agreement as Exhibit A. No Transfer of Registrable Securities by a Holder shall be registered on PubCo’s books and records, and such Transfer of Registrable Securities shall be null and void and not otherwise effective, unless any such Transfer is made in accordance with the terms and conditions of this Investor Rights Agreement, and PubCo is hereby authorized by all of the Holders to enter appropriate stop transfer notations on its transfer records to give effect to this Investor Rights Agreement.

 

 

(c)          All of the terms and provisions of this Investor Rights Agreement shall be binding upon the Parties and their respective successors, assigns, heirs and representatives, but shall inure to the benefit of and be enforceable by the successors, assigns, heirs and representatives of any Party only to the extent that they are permitted successors, assigns, heirs and representatives pursuant to the terms of this Investor Rights Agreement.

 

(d)          Nothing in this Investor Rights Agreement, express or implied, is intended to confer upon any Party, other than the Parties and their respective permitted successors, assigns, heirs and representatives, any rights or remedies under this Investor Rights Agreement or otherwise create any third party beneficiary hereto.

 

Section 5.2          Termination. Except for Section 2.1(i) (which section shall terminate at such time as the Sellers, the Sponsor and their Permitted Transferees are no longer entitled to any rights pursuant to such section), Article II shall terminate automatically (without any action by any Party) as to the Sellers, the Sponsor (including the Founder Holder) or PIF at such time at which such Party no longer has the right to designate an individual for nomination or an observer to the Board under this Investor Rights Agreement. Article III of this Investor Rights Agreement shall terminate as set forth in Section 3.13. The remainder of this Investor Rights Agreement shall terminate automatically (without any action by any Party) as to each Holder when such Holder, following the Closing Date, ceases to Beneficially Own any Registrable Securities; provided, that the provisions of Section 5.13 shall survive any such termination with respect to such Holder. Notwithstanding anything herein to the contrary, in the event the Merger Agreement terminates in accordance with its terms prior to the Closing, this Investor Rights Agreement shall automatically terminate and be of no further force or effect, without any further action required by the Parties.

 

Section 5.3          Severability. If any provision of this Investor Rights Agreement is determined to be invalid, illegal or unenforceable by any Governmental Entity, the remaining provisions of this Investor Rights Agreement, to the extent permitted by Law shall remain in full force and effect.

 

 

Section 5.4            Entire Agreement; Amendments; No Waiver.

 

(a)          This Investor Rights Agreement, together with the Exhibit to this Investor Rights Agreement, the Merger Agreement, the Plan of Liquidation and all other Transaction Agreements (as such term is defined in the Merger Agreement), constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether oral or written, relating to such subject matter in any way and there are no warranties, representations or other agreements among the Parties in connection with such subject matter except as set forth in this Investor Rights Agreement and therein.

 

(b)          No provision of this Investor Rights Agreement may be amended or modified in whole or in part at any time without the express written consent of (i) PubCo, (ii) for so long as the Sellers and their Permitted Transferees collectively Beneficially Own Common Stock representing 15% or more of the Common Stock Beneficially Owned by the Sellers immediately after the Closing, the Seller Representative, (iii) for so long as the Sponsor, the Founder Holder and their respective Permitted Transferees collectively Beneficially Own Common Stock in PubCo representing 15% or more of the Common Stock Beneficially Owned by the Sponsor immediately after the Closing, the Sponsor, and (iv) in any event, at least the Holders holding in the aggregate more than fifty percent (50%) of the Registrable Securities Beneficially Owned by the Holders; provided, that any such amendment or modification that adversely and disproportionately affects any Holder or Holders, as compared to any other Holder or Holders, shall require the prior written consent of such Holders who Beneficially Own a majority of the Registrable Securities Beneficially Owned by all such Holders so adversely and disproportionately affected; provided, further that any amendment or modification to Section 2.1(j), Article III, Article IV, Section 5.12, Section 5.13, Section 5.15 or this Section 5.4 that adversely affects any right granted to the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF shall require the consent of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF, as applicable; provided, further that any amendment or modification to Article II that adversely affects any right granted to the Seller Representative shall require the consent of the Seller Representative; provided, further that a provision that has terminated with respect to a Party shall not require any consent of such Party (and such Party’s Common Stock shall not be considered in computing any percentages) with respect to amending or modifying such provision.

 

(c)          No waiver of any provision or default under, nor consent to any exception to, the terms of this Investor Rights Agreement shall be effective unless in writing and signed by the Party to be bound and then only to the specific purpose, extent and instance so provided.

 

Section 5.5          Counterparts; Electronic Delivery. This Investor Rights Agreement and any other agreements, certificates, instruments and documents delivered pursuant to this Investor Rights Agreement may be executed and delivered in one or more counterparts and by fax, email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of a fax machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine or email as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Investor Rights Agreement or any document to be signed in connection with this Investor Rights Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

 

Section 5.6            Notices. All notices, demands and other communications to be given or delivered under this Investor Rights Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment) or received by email (with confirmation of transmission) prior to 5:00 p.m. eastern time on a Business Day and, if otherwise, on the next Business Day, (b) one (1) Business Day following sending by reputable overnight express courier (charges prepaid) or (c) three (3) calendar days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 5.6, notices, demands and other communications shall be sent to the addresses indicated below

 

if to PubCo, prior to the Closing, to:

 

Churchill Capital Corp. III

640 Fifth Avenue, 12th Floor

New York, NY 10019

	Attention:	Michael S. Klein
	Email:	***@***

 

if to PubCo, following the Closing, to:

 

c/o MultiPlan, Inc.

115 Fifth Avenue

New York, NY 10003

	Attention:	Chief Executive Officer
		General Counsel

	E-mail:	***@***
		***@***

 

if to the Sponsor, to:

 

640 Fifth Avenue, 12th Floor

New York, NY 10019

	Attention:	Michael S. Klein
	Email:	***@***

 

 

with a copy (which shall not constitute notice) to:

 

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

	Attn:	Michael J. Aiello and Matthew Gilroy
	E-mail:	***@*** and ***@***

 

if to the Seller Representative, to:

 

c/o Hellman & Friedman LLC
415 Mission Street

Suite 5700
San Francisco, California 94105

	Attention:	Arrie Park
	Email:	***@***

 

with copies (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

300 North LaSalle

Chicago, Illinois 60654

	Attention:	Richard J. Campbell, P.C.
		Matthew H. O’Brien, P.C.
		Christian Nagler
		Peter Seligson
	Email:	***@***
		***@***
		***@***
		***@***

 

and

Simpson Thacher & Bartlett LLP

2475 Hanover Street

Palo Alto, CA 94304

	Attention:	Atif Azher
		William Brentani

	E-mail:	***@***
		***@***

 

if to PIF, to:

 

The Public Investment Fund

Aldr'idah Digital City, Building MU04, Al Nakhil District

P.O. Box 6847

Riyadh 11452

The Kingdom of Saudi Arabia

	E-mail:	***@***
		***@***

 

 

with a copy (which shall not constitute notice) to:

 

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

	Attn:	Derek J. Dostal
		Lee Hochbaum
	E-mail:	***@***
		***@***

 

Section 5.7            Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all Actions, claims or matters related to or arising from this Investor Rights Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability of this Investor Rights Agreement, and the performance of the obligations imposed by this Investor Rights Agreement, in each case without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY TO THIS INVESTOR RIGHTS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS INVESTOR RIGHTS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS INVESTOR RIGHTS AGREEMENT AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS INVESTOR RIGHTS AGREEMENT. THE PARTIES FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH SUCH PARTY’S LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES SUCH PARTY’S JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Action arising out of or relating to this Investor Rights Agreement, agrees that all claims in respect of the Action shall be heard and determined in any such court and agrees not to bring any Action arising out of or relating to this Investor Rights Agreement in any other courts. Each Party irrevocably consents to the service of process in any such Action by the mailing of copies thereof by registered or certified mail, postage prepaid, to such Party, at its address for notices as provided in Section 5.6 of this Investor Rights Agreement, such service to become effective ten (10) days after such mailing. Each Party hereby irrevocably waives any objection to such service of process and further irrevocably waives and agrees not to plead or claim in any Action commenced hereunder or under any other documents contemplated hereby that service of process was in any way invalid or ineffective. Nothing in this Section 5.7, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity; provided, that each of the Parties hereby waives any right it may have under the Laws of any jurisdiction to commence by publication any Action with respect to this Investor Rights Agreement. To the fullest extent permitted by applicable Law, each of the Parties hereby irrevocably waives any objection it may now or hereafter have to the laying of venue of any Action arising out of or relating to this Investor Rights Agreement in any of the courts referred to in this Section 5.7 and hereby further irrevocably waives and agrees not to plead or claim that any such court is not a convenient forum for any such Action. Each Party agrees that a final judgment in any Action so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity, in any jurisdiction.

 

 

Section 5.8            Specific Performance. Each Party hereby agrees and acknowledges that it will be impossible to measure in money the damages that would be suffered if the Parties fail to comply with any of the obligations imposed on them by this Investor Rights Agreement and that, in the event of any such failure, an aggrieved Party will be irreparably damaged and will not have an adequate remedy at Law. Any such Party shall, therefore, be entitled (in addition to any other remedy to which such Party may be entitled at Law or in equity) to seek injunctive relief, including specific performance, to enforce such obligations, without the posting of any bond, and if any Action should be brought in equity to enforce any of the provisions of this Investor Rights Agreement, none of the Parties shall raise the defense that there is an adequate remedy at Law.

 

Section 5.9            Subsequent Acquisition of Shares. Any Equity Securities of PubCo acquired subsequent to the Effective Date by a Holder shall be subject to the terms and conditions of this Investor Rights Agreement and such shares shall be considered to be “Registrable Securities” as such term is used in this Investor Rights Agreement.

 

Section 5.10         Consents, Approvals and Actions. If any consent, approval or action of the Sellers, H&F Holders, GIC Holders, LGP Holders or PIH Rollover Holders is required at any time pursuant to this Investor Rights Agreement, such consent, approval or action shall be deemed given if the holders of a majority of the outstanding Equity Securities of PubCo held by the Sellers, H&F Holders, GIC Holders, LGP Holders or PIH Rollover Holders, as applicable, at such time provide such consent, approval or action in writing at such time.

 

Section 5.11         Not a Group; Independent Nature of Holders’ Obligations and Rights. The Holders and PubCo agree that the arrangements contemplated by this Investor Rights Agreement are not intended to constitute the formation of a “group” (as defined in Section 13(d)(3) of the Exchange Act). Each Holder agrees that, for purposes of determining beneficial ownership of such Holder, it shall disclaim any beneficial ownership by virtue of this Investor Rights Agreement of PubCo’s Equity Securities owned by the other Holders (other than, in the case of each of the H&F Holders, the GIC Holders and the LGP Holders, as amongst the Holders within such applicable defined group), and PubCo agrees to recognize such disclaimer in its Exchange Act and Securities Act reports. The obligations of each Holder under this Investor Rights Agreement are several and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder under this Investor Rights Agreement. Nothing contained herein, and no action taken by any Holder pursuant hereto, shall be deemed to constitute the Holders as, and PubCo acknowledges that the Holders do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Investor Rights Agreement or, as applicable, the Plan of Liquidation, and PubCo acknowledges that the Holders are not acting in concert or as a group, and PubCo shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Investor Rights Agreement or, as applicable, the Plan of Liquidation. Subject to Section 5.17, the decision of each Holder to enter into this Investor Rights Agreement and, as applicable, the Plan of Liquidation has been made by such Holder independently of any other Holder. Subject to Section 5.17, each Holder acknowledges that no other Holder has acted as agent for such Holder in connection with such Holder making its investment in PubCo and that no other Holder will be acting as agent of such Holder in connection with monitoring such Holder’s investment in the Common Stock or enforcing its rights under this Investor Rights Agreement. PubCo and each Holder confirms that each Holder has had the opportunity to independently participate with PubCo and its subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Investor Rights Agreement and, if applicable, the Plan of Liquidation, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the rights and obligations contemplated hereby was solely in the control of PubCo, not the action or decision of any Holder, and was done solely for the convenience of PubCo and its subsidiaries and not because it was required to do so by any Holder. It is expressly understood and agreed that each provision contained in this Investor Rights Agreement is between PubCo and a Holder, solely, and not between PubCo and the Holders collectively and not between and among the Holders.

 

 

Section 5.12        Other Business Opportunities.

 

(a)         The Parties expressly acknowledge and agree that to the fullest extent permitted by applicable law: (i) each of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder and PIF (including (A) their respective Affiliates, (B) any portfolio company in which they or any of their respective investment fund Affiliates have made a debt or equity investment (and vice versa) or (C) any of their respective limited partners, non-managing members or other similar direct or indirect investors) and the Seller Directors and the Sponsor Directors has the right to, and shall have no duty (fiduciary, contractual or otherwise) not to, directly or indirectly engage in and possess interests in other business ventures of every type and description, including those engaged in the same or similar business activities or lines of business as PubCo or any of its subsidiaries or deemed to be competing with PubCo or any of its subsidiaries, on its own account, or in partnership with, or as an employee, officer, director or shareholder of any other Person, with no obligation to offer to PubCo or any of its subsidiaries, or any other Holder the right to participate therein; (ii) each of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder and PIF (including (A) their respective Affiliates, (B) any portfolio company in which they or any of their respective investment fund Affiliates have made a debt or equity investment (and vice versa) or (C) any of their respective limited partners, non-managing members or other similar direct or indirect investors) and the Seller Directors and the Sponsor Directors may invest in, or provide services to, any Person that directly or indirectly competes with PubCo or any of its subsidiaries; and (iii) in the event that any of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF (including (A) their respective Affiliates, (B) any portfolio company in which they or any of their respective investment fund Affiliates have made a debt or equity investment (and vice versa) or (C) any of their respective limited partners, non-managing members or other similar direct or indirect investors) or any Seller Director or Sponsor Director, respectively, acquires knowledge of a potential transaction or matter that may be a corporate or other business opportunity for PubCo or any of its subsidiaries, such Person shall have no duty (fiduciary, contractual or otherwise) to communicate or present such corporate opportunity to PubCo or any of its subsidiaries or any other Holder, as the case may be, and, notwithstanding any provision of this Investor Rights Agreement to the contrary, shall not be liable to PubCo or any of its subsidiaries or any other Holder (or its Affiliates) for breach of any duty (fiduciary, contractual or otherwise) by reason of the fact that such Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not present such opportunity to PubCo or any of its subsidiaries or any other Holder (or its Affiliates). For the avoidance of doubt, the Parties acknowledge that this paragraph is intended to disclaim and renounce, to the fullest extent permitted by applicable law, any right of PubCo or any of its subsidiaries with respect to the matters set forth herein, and this paragraph shall be construed to effect such disclaimer and renunciation to the fullest extent permitted by law.

 

 

(b)           Each of the Parties hereby, to the fullest extent permitted by applicable law:

 

(i)               confirms that none of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF or any of their respective Affiliates have any duty to PubCo or any of its subsidiaries or to any other Holder other than the specific covenants and agreements set forth in this Investor Rights Agreement;

 

(ii)              acknowledges and agrees that (A) in the event of any conflict of interest between PubCo or any of its subsidiaries, on the one hand, and any of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF or any of their respective Affiliates (or any Seller Director or Sponsor Director acting in his or her capacity as such), on the other hand, such applicable H&F Holder, GIC Holder, LGP Holder, PIH Rollover Holder, the Sponsor, the Founder Holder, PIF or applicable Affiliates (or any Seller Director or Sponsor Director acting in his or her capacity as a director) may act in its best interest and (B) none of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF or any of their respective Affiliates or any Seller Director, Sponsor Director or PIF Board Observer acting in his or her capacity as a director or observer, shall be obligated (1) to reveal to PubCo or any of its subsidiaries confidential information belonging to or relating to the business of such Person or any of its Affiliates or (2) to recommend or take any action in its capacity as a direct or indirect stockholder or director, as the case may be, that prefers the interest of PubCo or its subsidiaries over the interest of such Person; and

 

(iii)            waives any claim or cause of action against any of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder and PIF and any of their respective Affiliates, and any officer, employee, agent or Affiliate of any such Person that may from time to time arise in respect of a breach by any such person of any duty or obligation disclaimed under Section 5.12(b)(i) or Section 5.12(b)(ii).

 

 

(c)          Each of the parties hereto agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.12 shall not apply to any alleged claim or cause of action against any of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder or PIF based upon the breach or nonperformance by such Person of this Investor Rights Agreement or any other agreement to which such Person is a party.

 

(d)          The provisions of this Section 5.12, to the extent that they restrict the duties and liabilities of any of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder, PIF or any of their respective Affiliates or any Seller Director or Sponsor Director otherwise existing at law or in equity, are agreed by the Parties to replace such other duties and liabilities of the H&F Holders, the GIC Holders, the LGP Holders, the PIH Rollover Holders, the Sponsor, the Founder Holder, PIF or any of their respective Affiliates or any such Seller Director or Sponsor Director to the fullest extent permitted by applicable law.

 

Section 5.13         Indemnification; Exculpation.

 

(a)         PubCo will, and PubCo will cause each of its subsidiaries to, jointly and severally indemnify, exonerate and hold the Holders and each of their respective direct and indirect partners, equityholders, members, managers, Affiliates, directors, officers, shareholders, fiduciaries, managers, controlling Persons, employees, representatives and agents and each of the partners, equityholders, members, Affiliates, directors, officers, fiduciaries, managers, controlling Persons, employees and agents of each of the foregoing (collectively, the “Holder Indemnitees”) free and harmless from and against any and all actions, causes of action, suits, claims, liabilities, losses, damages and costs and out-of-pocket expenses in connection therewith (including reasonable attorneys’ fees and expenses) incurred by the Holder Indemnitees or any of them before or after the date of this Investor Rights Agreement (collectively, the “Indemnified Liabilities”), arising out of any action, cause of action, suit, litigation, investigation, inquiry, arbitration or claim (each, an “Action”) arising directly or indirectly out of, or in any way relating to, (i) any Holder’s or its Affiliates’ ownership of Equity Securities of PubCo or control or ability to influence PubCo or any of its subsidiaries (other than any such Indemnified Liabilities (x) to the extent such Indemnified Liabilities arise out of any breach of this Investor Rights Agreement by such Holder Indemnitee or its Affiliates or other related Persons or the breach of any fiduciary or other duty or obligation of such Holder Indemnitee to its direct or indirect equity holders, creditors or Affiliates, (y) to the extent such control or the ability to control PubCo or any of its subsidiaries derives from such Holder’s or its Affiliates’ capacity as an officer or director of PubCo or any of its subsidiaries or (z) to the extent such Indemnified Liabilities are directly caused by such Person’s willful misconduct), (ii) the business, operations, properties, assets or other rights or liabilities of PubCo or any of its subsidiaries or (iii) any services provided prior to, on or after the date of this Investor Rights Agreement by any Holder or its Affiliates to PubCo, PIH or any of their respective subsidiaries; provided, however, that if and to the extent that the foregoing undertaking may be unavailable or unenforceable for any reason, PubCo will, and will cause its subsidiaries to, make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. For the purposes of this Section 5.13, none of the circumstances described in the limitations contained in the proviso in the immediately preceding sentence shall be deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction to such effect, in which case to the extent any such limitation is so determined to apply to any Holder Indemnitee as to any previously advanced indemnity payments made by PubCo or any of its subsidiaries, then such payments shall be promptly repaid by such Holder Indemnitee to PubCo and its subsidiaries. The rights of any Holder Indemnitee to indemnification hereunder will be in addition to any other rights any such Person may have under any other agreement or instrument to which such Holder Indemnitee is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation or under the organizational or governing documents of PubCo or its subsidiaries.

 

 

 

(b)               PubCo will, and will cause each of its subsidiaries to, jointly and severally, reimburse any Holder Indemnitee for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any Action for which the Holder Indemnitee would be entitled to indemnification under the terms of this Section 5.13, or any action or proceeding arising therefrom, whether or not such Holder Indemnitee is a party thereto. PubCo or its subsidiaries, in the defense of any Action for which a Holder Indemnitee would be entitled to indemnification under the terms of this Section 5.13, may, without the consent of such Holder Indemnitee, consent to entry of any judgment or enter into any settlement if and only if it (i) includes as a term thereof the giving by the claimant or plaintiff therein to such Holder Indemnitee of an unconditional release from all liability with respect to such Action, (ii) does not impose any limitations (equitable or otherwise) on such Holder Indemnitee, and (iii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such Holder Indemnitee, and provided, that the only penalty imposed in connection with such settlement is a monetary payment that will be paid in full by PubCo or its subsidiaries.

 

(c)               PubCo acknowledges and agrees that PubCo shall, and to the extent applicable shall cause its subsidiaries to, be fully and primarily responsible for the payment to any Holder Indemnitee in respect of Indemnified Liabilities in connection with any Jointly Indemnifiable Claims (as defined below), pursuant to and in accordance with (as applicable) the terms of (i) the Delaware General Corporation Law and the Organizational Documents, each as amended, (ii) any director indemnification agreement, (iii) this Investor Rights Agreement, any other agreement between PubCo or any of its subsidiaries and such Holder Indemnitee (or its Affiliates) pursuant to which such Holder Indemnitee is indemnified, (v) the laws of the jurisdiction of incorporation or organization of any subsidiary of PubCo and/or (vi) the certificate of incorporation, certificate of organization, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or other organizational or governing documents of any subsidiary of PubCo ((i) through (vi) collectively, the “Indemnification Sources”), irrespective of any right of recovery such Holder Indemnitee (or its Affiliates) may have from any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than PubCo, any of its subsidiaries or the insurer under and pursuant to an insurance policy of PubCo or any of its subsidiaries) from whom such Holder Indemnitee may be entitled to indemnification with respect to which, in whole or in part, PubCo or any of its subsidiaries may also have an indemnification obligation (collectively, the “Indemnitee-Related Entities”). Under no circumstance shall PubCo or any of its subsidiaries be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of advancement or recovery any Holder Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of such Holder Indemnitee or the obligations of PubCo or any of its subsidiaries under the Indemnification Sources. In the event that any of the Indemnitee-Related Entities shall make any payment to any Holder Indemnitee in respect of indemnification with respect to any Jointly Indemnifiable Claim, (x) PubCo shall, and to the extent applicable shall cause its subsidiaries to, reimburse the Indemnitee-Related Entity making such payment to the extent of such payment promptly upon written demand from such Indemnitee-Related Entity, (y) to the extent not previously and fully reimbursed by PubCo and/or any of its subsidiaries pursuant to clause (x), the Indemnitee-Related Entity making such payment shall be subrogated to the extent of the outstanding balance of such payment to all of the rights of recovery of the Holder Indemnitee against PubCo and/or any of its subsidiaries, as applicable, and (z) such Holder Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-Related Entities effectively to bring suit to enforce such rights. Each of the Parties agree that each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 5.13(c), entitled to enforce this Section 5.13(c) as though each such Indemnitee-Related Entity were a party to this Investor Rights Agreement. PubCo shall cause each of its subsidiaries to perform the terms and obligations of this Section 5.13(c) as though each such subsidiary were a party to this Investor Rights Agreement. For purposes of this Section 5.13(c), the term “Jointly Indemnifiable Claims” shall be broadly construed and shall include, without limitation, any Indemnified Liabilities for which any Holder Indemnitee shall be entitled to indemnification from both (1) PubCo and/or any of its subsidiaries pursuant to the Indemnification Sources, on the one hand, and (2) any Indemnitee-Related Entity pursuant to any other agreement between any Indemnitee-Related Entity and such Holder Indemnitee (or its Affiliates) pursuant to which such Holder Indemnitee is indemnified, the laws of the jurisdiction of incorporation or organization of any Indemnitee-Related Entity and/or the certificate of incorporation, certificate of organization, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or other organizational or governing documents of any Indemnitee-Related Entity, on the other hand.

 

(d)               In no event shall any Holder Indemnitee be liable to PubCo or any of its subsidiaries for any act, alleged act, omission or alleged omission that does not constitute willful misconduct or fraud of such Holder Indemnitee as determined by a final, nonappealable determination of a court of competent jurisdiction.

 

(e)                Notwithstanding anything to the contrary contained in this Investor Rights Agreement, for purposes of this Section 5.13, the term Holder Indemnitees shall not include any Holder or its any of its partners, equityholders, members, Affiliates, directors, officers, fiduciaries, managers, controlling Persons, employees and agents or any of the partners, equityholders, members, Affiliates, directors, officers, fiduciaries, managers, controlling Persons, employees and agents of any of the foregoing who is an officer or director of PubCo or any of its subsidiaries in such capacity as officer or director. Such officers and directors are or will be subject to separate indemnification in such capacity through this Investor Rights Agreement and/or the certificate of incorporation or organization, bylaws or limited partnership agreements and other instruments of PubCo and its subsidiaries.

 

 

(f)               The rights of any Holder Indemnitee to indemnification pursuant to this Section 5.13 will be in addition to any other rights any such Person may have under any other section of this Investor Rights Agreement or any other agreement or instrument to which such Holder Indemnitee is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation or under the certificate of limited partnership, limited partnership agreement, certificate of incorporation or bylaws (or equivalent governing documents) of PubCo or any of its subsidiaries.

 

Section 5.14              Representations and Warranties of the Parties. Each of the Parties hereby represents and warrants to each of the other Parties as follows:

 

(a)               Such Party, to the extent applicable, is duly organized or incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation and has all requisite power and authority to conduct its business as it is now being conducted and is proposed to be conducted.

 

(b)              Such Party has the full power, authority and legal right to execute, deliver and perform this Investor Rights Agreement. The execution, delivery and performance of this Investor Rights Agreement have been duly authorized by all necessary action, corporate or otherwise, of such Party. This Investor Rights Agreement has been duly executed and delivered by such Party and constitutes its, his or her legal, valid and binding obligation, enforceable against it, him or her in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally.

 

(c)               The execution and delivery by such Party of this Investor Rights Agreement, the performance by such Party of its, his or her obligations hereunder by such Party does not and will not violate (i) in the case of Parties who are not individuals, any provision of its by-laws, charter, articles of association, partnership agreement or other similar organizational document, (ii) any provision of any material agreement to which it, he or she is a Party or by which it, he or she is bound or (iii) any law, rule, regulation, judgment, order or decree to which it, he or she is subject.

 

(d)               Such Party is not currently in violation of any law, rule, regulation, judgment, order or decree, which violation could reasonably be expected at any time to have a material adverse effect upon such Party’s ability to enter into this Investor Rights Agreement or to perform its, his or her obligations hereunder.

 

 

(e)               There is no pending legal action, suit or proceeding that would materially and adversely affect the ability of such Party to enter into this Investor Rights Agreement or to perform its, his or her obligations hereunder.

 

Section 5.15              No Third Party Liabilities. This Investor Rights Agreement may only be enforced against the named parties hereto. All claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to any of this Investor Rights Agreement, or the negotiation, execution or performance of this Investor Rights Agreement (including any representation or warranty made in or in connection with this Investor Rights Agreement or as an inducement to enter into this Investor Rights Agreement), may be made only against the Persons that are expressly identified as parties hereto, as applicable; and no past, present or future direct or indirect director, officer, employee, incorporator, member, partner, stockholder, Affiliate, portfolio company in which any such Party or any of its investment fund Affiliates have made a debt or equity investment (and vice versa), agent, attorney or representative of any Party hereto (including any Person negotiating or executing this Investor Rights Agreement on behalf of a Party hereto), unless a Party to this Investor Rights Agreement, shall have any liability or obligation with respect to this Investor Rights Agreement or with respect any claim or cause of action (whether in contract or tort) that may arise out of or relate to this Investor Rights Agreement, or the negotiation, execution or performance of this Investor Rights Agreement (including a representation or warranty made in or in connection with this Investor Rights Agreement or as an inducement to enter into this Investor Rights Agreement).

 

Section 5.16             Legends. Without limiting the obligations of PubCo set forth in Section 3.11, each of the Holders acknowledges that (i) no Transfer, hypothecation or assignment of any Registrable Securities Beneficially Owned by such Holder may be made except in compliance with applicable federal and state securities laws and (ii) PubCo shall (x) place customary restrictive legends on the certificates or book entries representing the Registrable Securities subject to this Investor Rights Agreement and (y) remove such restrictive legends at the time the applicable Transfer and other restrictions contemplated thereby are no longer applicable to the Registrable Securities represented by such certificates or book entries.

 

Section 5.17             Seller Proxy Signatures. Pursuant to Section 3.5(h) of that certain Unitholders Agreement, dated as of June 7, 2016, by and among PIH and the Sellers (the “PIH UHA”), PIH is appointed as each Seller's true and lawful representative and attorney-in-fact in connection with any Drag-Along Sale (as defined in the PIH UHA) and is entitled to execute and deliver certain agreements on behalf of such Seller. On or prior to the date hereof, the applicable parties have acknowledged and agreed the transactions contemplated hereby and by the Merger Agreement constitute a Drag-Along Sale and that Section 3.5 of the PIH UHA survives with respect to effectuating such Drag-Along Sale. As such, pursuant to Section 3.5(h) of the PIH UHA, PIH is hereby executing this Investor Rights Agreement as of the date hereof on behalf of certain Sellers, as noted on the signature pages hereto by reference to signatures by the Seller Representative as attorney-in-fact for such Sellers (collectively, the “Drag-Along Sellers”); provided, that following the date hereof, to the extent any such Drag-Along Seller executes this Investor Rights Agreement directly, such signature may be inserted into this Investor Rights Agreement in place of the signature page executed by PIH on such Drag-Along Seller's behalf as of the date hereof, without any further consent or action required and without otherwise affecting the obligations of the other Parties.

 

 

Section 5.18              Bylaws. From the Closing Date until the date that is eighteen (18) months following the Closing Date, each of the H&F Holders agrees with PubCo not to vote any of its Common Stock in favor of any action that would require, pursuant to the Bylaws, the approval of 66 2/3% of the directors present at a meeting of the Board at which a quorum is present, unless such approval of the Board has been obtained with respect to such action.

 

Section 5.19             Adjustments. If there are any changes in the Common Stock as a result of stock split, stock dividend, combination or reclassification, or through merger, consolidation, recapitalization or other similar event, appropriate adjustment shall be made in the provisions of this Investor Rights Agreement, as may be required, so that the rights, privileges, duties and obligations under this Investor Rights Agreement shall continue with respect to the Common Stock as so changed.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, each of the Parties has duly executed this Investor Rights Agreement as of the Effective Date.

 

 

	PUBCO:
	CHURCHILL CAPITAL CORP III
	By:		/s/ Jay Taragin
	Name: Jay Taragin
	Title: Chief Financial Officer
	SPONSOR:
	CHURCHILL SPONSOR III
	By:		/s/ Jay Taragin
	Name: Jay Taragin
	Title: Authorized Person

 

 

	The Public Investment Fund of the Kingdom of Saudi Arabia
	By:		/s/ His Excellency Mr. Yasir Al Rumayyan
	Name: His Excellency Mr. Yasir Al Rumayyan
	Title: Governor

 

 

	PIH:
	POLARIS INVESTMENT HOLDINGS, L.P.
	By:		/s/ Mark Tabak
	Name: Mark Tabak
	Title: President
	MULTIPLAN:
	MULTIPLAN, INC.
	By:		/s/ Mark Tabak
	Name: Mark Tabak
	Title: Chief Executive Officer

 

 

	SELLERS:
	HELLMAN & FRIEDMAN CAPITAL PARTNERS VIII, L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director
	HELLMAN & FRIEDMAN CAPITAL PARTNERS VIII (PARALLEL), L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director
	HFCP VIII (PARALLEL-A), L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director

  

 

	H&F EXECUTIVES VIII, L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director
	H&F ASSOCIATES VIII, L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director

 

 

	H&F POLARIS PARTNERS, L.P.
	By: H & F POLARIS PARTNERS GP, LLC
	Its: General Partner
	By: HELLMAN & FRIEDMAN CAPITAL PARTNERS VIII, L.P.
	Its: Managing Member
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	Its: General Partner
	By: H&F CORPORATE INVESTORS VIII, L.P.
	Its: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director
	VIGGO INVESTMENT PTE. LTD.
	By:		/s/ Brad Yale
	Name: Brad Yale
	Title: Authorized Signatory
	GREEN EQUITY INVESTORS VI, L.P.
	By: GEI CAPITAL VI, LLC
	Its: General Partner
	By:		/s/ John Yoon
	Name: John Yoon
	Title:
	GREEN EQUITY INVESTORS SIDE VI, L.P.
	By: GEI CAPITAL VI, LLC
	Its: General Partner
	By:		/s/ John Yoon
	Name: John Yoon
	Title:

 

 

	LGP ASSOCIATES VI-A LLC
	By: PERIDOT COINVEST MANAGER LLC, its Manager
	By: LEONARD GREEN AND PARTNERS, L.P.
	Its: Manager
	By: LGP MANAGEMENT, INC.
	Its: General Partner
	By:		/s/ John Yoon
	Name: John Yoon
	Title:
	LGP ASSOCIATES VI-B LLC
	By: PERIDOT COINVEST MANAGER LLC, its Manager
	By: LEONARD GREEN AND PARTNERS, L.P.
	Its: Manager
	By: LGP MANAGEMENT, INC.
	Its: General Partner
	By:		/s/ John Yoon
	Name: John Yoon
	Title:
	SIH MPH ROLLOVER CO, L.P.
	By: SIH MPH Rollover GP, LLC
	Its: General Partner
	By: Starr Investment Holdings, LLC
	Its: Managing Member
	By:		/s/ Geoffrey Clark
	Name: Geoffrey Clark
	Title: Senior Managing Director

 

 

	30 MP INVESTMENT, LLC
	By:		/s/ Andrew B. Cohen
	Name: Andrew B. Cohen
	Title: Authorized Signatory
	PARTNERS GROUP PRIVATE EQUITY (MASTER FUND), LLC
	By: Partners Group (USA) Inc., as investment manager
	By: Partners Group (Guernsey) Limited, under power of attorney
	By:		/s/ Laine Shorto
	Name: Laine Shorto
	Title: Authorised Signatory
	By:		/s/ Luke Russell
	Name: Luke Russell
	Title: Authorised Signatory
	PARTNERS GROUP CLIENT ACCESS 17, L.P.
	By: Partners Group Cayman Management III Limited
	Its: General Partner
	By: Partners Group (Guernsey) Limited, under power of attorney
	By:		/s/ Laine Shorto
	Name: Laine Shorto
	Title: Authorised Signatory
	By:		/s/ Luke Russell
	Name: Luke Russell
	Title: Authorised Signatory

 

 

	LINDSAY LEVIN 2012 DYNASTY TRUST
	By:		/s/ Mark Tabak
	Name: Mark Tabak
	Title: Trustee
	Mark Tabak
	By:		/s/ Mark Tabak
	Tracy Fritz
	By:		/s/ Tracy Fritz
	Susan Mohler
	By:		/s/ Susan Mohler
	Steven Jolie Revocable Trust, dated June 1, 2015
	By:		/s/ Steve Jolie
	Name: Steven Jolie
	Title: Trustee
	Patricia Rizzi
	By:		/s/ Patricia Rizzi
	Jacqueline Kienzle
	By:		/s/ Jacqueline Kienzle
	Derek Reis-Larson
	By:		/s/ Derek Reis-Larson
	Dale White
	By:		/s/ Dale White

 

 

	Barry Roelofs
	By:		/s/ Barry R. Roelofs
	Michael S. McEttrick
	By:		/s/ Michael S. McEttrick
	Sean P. Crandell
	By:		/s/ Sean P. Crandell
	Michael Kim
	By:		/s/ Michael Kim
	Jeffrey Doctoroff
	By:		/s/ Jeffrey Doctoroff
	BDG ENTERPRISES, L.P.
	By: EBDG Holdings, LLC
	Its: General Partner
	By:		/s/ Brad T. Bassler
	Name: Brad T. Bassler
	Title: Manager
	LAUREN FASS 2012 DYNASTY TRUST
	By:		/s/ Mark Tabak
	Name: Mark Tabak
	Title: as Trustee
	DAVID L. REDMOND CHILDRENS 2007 IRREVOCABLE TRUST
	By:		/s/ Brad T. Bassler
	Name: Brad T. Bassler
	Title: Trustee

 

 

	Adam Altkin
	Andrea Buford
	Andrew V. George
	Brendan Miller
	Bruce Singleton
	Cherise Skeba
	Dan Hubbard
	David Gandy
	Emma Johnson
	ErinMichelle Perri
	Joseph P. Noble & Mary D. Noble Joint Trust
	Kathleen Praxmarer
	Kurt H. Malcolm
	Lore Stanley
	Mark Miani
	Melbalynn Madarang
	Melissa Dotson
	Michael D. Genzel
	Michael Ferrante
	Michael Taylor
	Monica Armstrong
	Sandra F. Slowik
	Susan Dominy
	By:		/s/ Mark Tabak
	Name: Mark Tabak, as President of Polaris Investment Holdings, L.P., as attorney-in-fact for the above-named Sellers
	SELLER REPRESENTATIVE:
	HELLMAN & FRIEDMAN CAPITAL PARTNERS VIII, L.P.
	By: HELLMAN & FRIEDMAN INVESTORS VIII, L.P.
	It: General Partner
	By: H&F CORPORATE INVESTORS VIII, LTD.
	It: General Partner
	By:		/s/ Hunter Philbrick
	Name: Hunter Philbrick
	Title: Managing Director

 

 

	FOUNDER HOLDERS:
	/s/ Michael Klein
	Michael Klein

  

 

Exhibit A
Form of Joinder

 

This Joinder (this “Joinder”) to the Investor Rights Agreement, made as of                   , is between                    (“Transferor”) and                    (“Transferee”).

 

WHEREAS, as of the date hereof, Transferee is acquiring                 Registrable Securities (the “Acquired Interests”) from Transferor;

 

WHEREAS, Transferor is a party to that certain Investor Rights Agreement, dated as of [●], 2020, among [________] ( “PubCo”) and the other persons party thereto (the “Investor Rights Agreement”); and

 

WHEREAS, Transferee is required, at the time of and as a condition to such Transfer, to become a party to the Investor Rights Agreement by executing and delivering this Joinder, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of the Investor Rights Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:

 

Section 1.1      Definitions. To the extent capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective meanings set forth in the Investor Rights Agreement.

 

Section 1.2      Acquisition. The Transferor hereby Transfers to the Transferee all of the Acquired Interests.

 

Section 1.3      Joinder. Transferee hereby acknowledges and agrees that (a) such Transferee has received and read the Investor Rights Agreement, (b) such Transferee is acquiring the Acquired Interests in accordance with and subject to the terms and conditions of the Investor Rights Agreement and (c) such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of the Investor Rights Agreement.

 

Section 1.4      Notice. Any notice, demand or other communication under the Investor Rights Agreement to Transferee shall be given to Transferee at the address set forth on the signature page hereto in accordance with Section 5.6 of the Investor Rights Agreement.

 

Section 1.5      Governing Law. This Joinder shall be governed by and construed in accordance with the law of the State of Delaware.

 

Section 1.6      Counterparts; Electronic Delivery. This Joinder may be executed and delivered in one or more counterparts, by fax, email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Joinder or any document to be signed in connection with this Joinder shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

 

IN WITNESS WHEREOF, this Joinder has been duly executed and delivered by the parties as of the date first above written.

 

	[TRANSFEROR]
	By:
	Name:
	Title:
	[TRANSFEREE]
	By:
	Name:
	Title:
	Address for notices: