Amendment to Stockholders Agreement, dated March 23, 2020, by and among KLDiscovery Inc. (formerly known as Pivotal Acquisition Corp.) and CEOF II DE I AIV, LP, a partnership, and Revolution Growth III, LP, and certain other signatories thereto

EX-10.37 4 kld-ex1037_889.htm EX-10.37 kld-ex1037_889.htm

Exhibit 10.37

AMENDMENT TO

STOCKHOLDERS’ AGREEMENT

 

This Amendment (this “Amendment”) to the Stockholders’ Agreement, dated as of December 19, 2019 (the “Agreement”), by and among KLDiscovery Inc. (formerly known as Pivotal Acquisition Corp.), a Delaware corporation (the “Company”), CEOF II DE I AIV, L.P., a Delaware limited partnership (“CEOF AIV”), CEOF II Coinvestment (DE), L.P., a Delaware limited partnership (“CEOF Coinvest”), CEOF II Coinvestment B (DE), L.P., a Delaware limited partnership (“CEOF Coinvest B”), and Revolution Growth III, LP, a Delaware limited partnership (“Revolution” and, together with CEOF AIV, CEOF Coinvest and CEOF Coinvest B, the “LD Topco Holders”), is entered into as of March 23, 2020 (the “Amendment Date”), by and among the Company and the LD Topco Holders.  All capitalized terms used in this Amendment and not otherwise defined herein shall have the respective meanings given to such terms in the Agreement.

 

RECITALS

 

WHEREAS, the parties to the Agreement desire to amend the Agreement as expressly provided in this Amendment pursuant to Section 16 of the Agreement.

 

NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows;

 

1.Amendment to Section 1(b).  Section 1(b) of the Agreement is hereby amended and restated in its entirety and replaced for all purposes of the Agreement with the following (with deletions to the prior text shown in strikethrough, and additions shown with bold underline):

The Company shall take all necessary and desirable actions within its controlhas taken actions such that, as of the Effective Timeas of the Amendment Date: (i) the size of the Board shall beis set at eightnine members; and (ii) the following persons shall form the composition of the Board: (A) Richard J. Williams, Lawrence Prior and Kevin Griffin shall be appointedare serving as Class A Directors with terms ending at the Company’s 2020 Annual Meeting; (B) Donna Morea, Jonathan J. Ledecky and Evan Morgan shall be appointedare serving as Class B Directors with terms ending at the Company’s 2021 Annual Meeting; and (C) Christopher J. Weiler, Daniel F. AkersonIan Fujiyama and William Darman shall be appointedare serving as Class C Directors with terms ending at the Company’s 2022 Annual Meeting.

2.Amendment to Section 1(c).  Section 1(c) of the Agreement is hereby amended and restated in its entirety and replaced for all purposes of the Agreement with the following (with deletions to the prior text shown in strikethrough, and additions shown with bold underline):

 

(c)

Subject to the terms and conditions of this Agreement, from and after the Effective Time and until a Termination Event shall have occurred, the Company shall, as promptly as practicable, take all necessary and desirable actions within its control (including, without limitation, calling special meetings of the Board and the shareholders and recommending, supporting and soliciting proxies), so that:

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(i)

for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 65% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to six (less the number of LD Topco Directors who are not up for election), and the size of the Board shall be set at eightnine members;

 

(ii)

for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 35% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, but less than 65% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to three (less the number of LD Topco Directors who are then serving but not up for election), and the size of the Board shall be set at eightnine members; and

 

(iii)

for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 10% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof but less than 35% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to one (less the number of LD Topco Directors who are then serving but not up for election), and the size of the Board shall be set at eightnine members;

provided, that, no reduction in the number of shares of Common Stock over which the LD Topco Holders and their Affiliates retain voting control shall shorten the term of any incumbent Director.

3.LD Topco Holders Approval.  The LD Topco Holders hereby consent to the actions taken by the Company to increase the size of the Board as contemplated in this Amendment.  For the avoidance of doubt, as of the Amendment Date, (a) the LD Topco Holders have not designated any Nominee in connection with a stockholder meeting and (b) as a result, no LD Topco Director yet exists.

4.Remaining Provision; References.  Except as expressly modified by this Amendment, the Agreement shall remain in full force and effect. Each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the Agreement, and each reference in any other document relating to the “Agreement,” “thereunder,” “thereof” or words of like import referring to the Agreement, means and references the Agreement as amended by this Amendment.

 

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5.Miscellaneous.  Sections 8 (No Strict Construction), 11 (Counterparts), 12 (Governing Law), 13 (Jurisdiction; WAIVER OF TRIAL BY JURY) and 16 (Amendment and Waiver) of the Agreement shall apply to this Amendment, mutatis mutandis.

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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed as of the date first above written.

 

 

KLDISCOVERY INC.

 

/s/ Dawn Wilson

By: _________________________________

Name:Dawn Wilson

Title:CFO

 

CEOF II DE I AIV, L.P.

 

By: CEOF II DE AIV GP, L.P., its general partner

By: CEOF II DE GP AIV, L.L.C., its general partner

 

/s/ Will Darman

By: _________________________________

Name:Will Darman

Title:Managing Director

 

CEOF II COINVESTMENT (DE), L.P.

 

By: CEOF II DE AIV GP, L.P., its general partner

By: CEOF II DE GP AIV, L.L.C., its general partner

 

/s/ Will Darman

By: _________________________________

Name:Will Darman

Title:Managing Director

 

CEOF II COINVESTMENT B (DE), L.P.

 

By: CEOF II DE AIV GP, L.P., its general partner

By: CEOF II DE GP AIV, L.L.C., its general partner

 

/s/ Will Darman

By: _________________________________

Name:Will Darman

Title:Managing Director

 

 

 

 

 

 

 

[Signature Page to Amendment to Stockholders’ Agreement]

 

REVOLUTION GROWTH III, LP

 

By: Revolution Growth GP III, L.P., its general partner

By: Revolution Growth UGP III, LLC, its general partner

 

/s/ Steven J. Murray

By: _________________________________

Name:Steven J. Murray

Title:Operating Manager

[Signature Page to Amendment to Stockholders’ Agreement]