Form 8-K
8-K — FMC CORP
Accession: 0000950103-26-014390
Filed: 2026-09-23
Period: 2026-09-23
CIK: 0000037785
SIC: 2800 (CHEMICALS & ALLIED PRODUCTS)
Item: Entry into a Material Definitive Agreement
Item: Unregistered Sales of Equity Securities
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — dp253498_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (dp253498_ex1001.htm)
EX-10.2 — EXHIBIT 10.2 (dp253498_ex1002.htm)
EX-99.1 — EXHIBIT 99.1 (dp253498_ex9901.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 23, 2026
FMC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation)
1-2376
(Commission File Number)
94-0479804
(IRS Employer Identification No.)
2929 Walnut Street
Philadelphia, Pennsylvania
(Address of principal executive offices)
19104
(Zip Code)
Registrant’s telephone number, including
area code: (215) 299-6000
N/A
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.10 per share
FMC
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on June 30, 2026, FMC Corporation, a Delaware
corporation (the “Company”), entered into a Stock Purchase Agreement (the “Purchase Agreement”) with Tessenderlo
Group NV, a public limited company incorporated under the laws of Belgium (the “Investor”), pursuant to which the Company
agreed to sell to the Investor an aggregate of 30,319,166 shares of the Company’s common stock, par value $0.10 per share (the “Common
Stock”), at a price per share of $13.30, for an aggregate purchase price of $403,244,907.80 (the “Investment”). As of
the consummation of the Investment, and taking into account the shares of Common Stock already held by the Investor, the Investor owns
approximately 20.0% of the outstanding shares of Common Stock.
On September 23, 2026, the Company and the Investor completed the purchase
and sale of the Common Stock (the “Closing”). Concurrently with the Closing, the parties entered into an Investor Agreement
(the “Investor Agreement”) and a Registration Rights Agreement (the “Registration Rights Agreement”).
Investor Agreement
Pursuant to the terms of the Investor Agreement, for so long as the
Investor holds at least 10.0% of the outstanding shares of Common Stock, (i) at the first regularly scheduled meeting of the Company’s
board of directors (the “Board”) following the Closing, the Company will increase the size of the Board by one member and
appoint a candidate nominated by the Investor to fill such vacancy (the “Initial Investor Nominee”) and (ii) the Investor
will have a right to nominate a candidate (the “Investor Nominee”) to be considered for inclusion in the slate of nominees
recommended by the Board to stockholders for election at any meeting of stockholders held for the election of directors. The Initial Investor
Nominee and the Investor Nominees are required to be independent directors under the listing rules of the New York Stock Exchange. The
Investor will also have the right to one Board observer for so long as the Investor holds at least 10.0% of the outstanding shares of
Common Stock.
Pursuant to the terms of the Investor Agreement, during the period
commencing at the Closing and ending on the date on which both (i) the Investor owns less than 10% of the outstanding shares of Common
Stock and (ii) at least 12 months have passed since an Investor Nominee last served as a director, at each meeting of stockholders of
the Company, the Investor will cause all Common Stock beneficially owned by the Investor or any of its affiliates or associates (each
as defined under the Securities Exchange Act of 1934, as amended) to be voted in accordance with the recommendation of the Board for all
matters submitted to a vote of the stockholders of the Company, other than any matter involving a change of control of the Company.
For so long as the Investor or any of its permitted transferees holds
any shares of Common Stock, the Investor and its affiliates and associates are subject to customary standstill restrictions limiting or
prohibiting, among other things, the acquisition of additional shares of Common Stock, proposing a merger or other extraordinary transaction,
soliciting proxies or assisting any other person in connection with any of the foregoing. The standstill restrictions fall away under
certain circumstances, including the entry by the Company into a change of control transaction.
Under the Investor Agreement, for a period of 36 months following the
Closing (the “Lock Up Period”), the Investor and its affiliates are prohibited from transferring, or hedging their direct
or indirect exposure to, any Common Stock, subject to certain exceptions. Following the expiration of the Lock Up Period, the Investor
will be able to transfer its Common Stock; provided that in no event can the Investor transfer to (i) any competitor of the Company, (ii)
an activist or (iii) any transferee that would become a holder of 4.9% or more of the outstanding shares of Common Stock after giving
effect to such transfer, subject to certain exceptions.
For so long as Investor holds at least 10.0% of the outstanding shares
of Common Stock, the Company has granted the Investor customary preemptive rights on issuances of shares of Common Stock or securities
convertible into or exchangeable or exercisable for shares of Common Stock, subject to customary exceptions. The Investor also has the
right to acquire shares of Common Stock during specified periods to maintain an ownership percentage of 20.0% of the outstanding shares
of Common Stock, subject to termination under certain circumstances.
Investor also has the right to receive certain information and is subject
to customary confidentiality provisions.
The foregoing summary of the Investor Agreement does not purport to
be complete and is qualified in its entirety by reference to the Investor Agreement, a copy of which is filed as Exhibit 10.1 to this
Current Report on Form 8-K and is incorporated by reference herein.
Registration Rights Agreement
Pursuant to the Registration Rights Agreement, the Company has granted
the Investor eight demand registration rights with respect to shares of Common Stock held by the Investor, provided that the Investor
may not exercise such right more than once every 120 days.
The Company will also, among other things, indemnify the Investor and
its officers, directors, agents and representatives and each other person, if any, who controls the Investor, under any registration statement
from certain liabilities and pay all fees and expenses (excluding any underwriting discounts and commissions and transfer taxes, if any)
incident to the Company’s obligations under the Registration Rights Agreement.
The foregoing summary of the Registration Rights Agreement does not
purport to be complete and is qualified in its entirety by reference to the Registration Rights Agreement, a copy of which is filed as
Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 3.02 Unregistered Sales of Equity Securities.
To the extent required by Form 8-K, the disclosures in Item 1.01 above
are incorporated herein by reference.
In connection with the Purchase Agreement, on September 23, 2026, the
Company completed the sale of 30,319,166 shares of Common Stock to the Investor at a price per share of $13.30, for an aggregate purchase
price of $403,244,907.80.
The securities sold to the Investor under the Purchase Agreement were
not registered under the Securities Act of 1933, as amended (the “Securities Act”) in reliance on the exemption from registration
provided by Section 4(a)(2) of the Securities Act, or under any state securities laws. The Company relied on this exemption from registration
based in part on representations made by the Investor. The sale was not conducted in connection with a public offering and no public solicitation
or advertisement was made in connection with the sale of the Common Stock. The securities may not be offered or sold in the United States
absent registration or an applicable exemption from registration requirements
Item 7.01 Regulation FD Disclosure.
On September 23, 2026, the Company issued a press release announcing
the completion of the Investment. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information in Item 7.01 of this Current Report on Form 8-K, including
the information in the press release attached as Exhibit 99.1 to this Current Report on Form 8-K, is furnished pursuant to Item 7.01 of
Form 8-K and shall not be deemed “filed” for the purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities
of that section. Furthermore, the information in Item 7.01 of this Current Report on Form 8-K, including the information in the press
release attached as Exhibit 99.1 to this Current Report on Form 8-K, shall not be deemed to be incorporated by reference in the filings
of the Company under the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description
10.1†
Investor Agreement, dated September 23, 2026, by and between FMC Corporation and Tessenderlo Group NV.
10.2
Registration Rights Agreement, dated September 23, 2026, by and among FMC Corporation, Tessenderlo Group NV and and the other Securityholders (as defined therein) party thereto.
99.1
Press Release, dated September 23, 2026.
104
Cover Page Interactive Data File (formatted in Inline XBRL).
† Schedules have been omitted pursuant to Item 601(a)(5) of
Regulation S-K. The registrant hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the
Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
FMC CORPORATION
(Registrant)
Date: September 23, 2026
By:
/s/ Andrew D. Sandifer
Name:
Andrew D. Sandifer
Title:
Executive Vice President and Chief Financial Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: dp253498_ex1001.htm · Sequence: 2
Exhibit 10.1
INVESTOR AGREEMENT
This INVESTOR AGREEMENT (this
“Agreement”) is dated as of September 23, 2026, by and between FMC Corporation, a Delaware corporation (the “Company”),
and Tessenderlo Group NV, a public limited company incorporated under the laws of Belgium (“Investor”).
W I T N E S S E T H :
WHEREAS, pursuant to the Stock
Purchase Agreement (the “Transaction Agreement”) dated as of June 30, 2026 between Investor and the Company, the Company
sold to Investor, and Investor purchased from the Company, 30,319,166 Shares; and
NOW, THEREFORE in consideration
of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
Article
1
Definitions
Section 1.01. Definitions. (a)
As used herein, the following terms have the following meanings:
“Activist Investor”
means any Person that, as of any date of determination, has, directly or indirectly through its Affiliates, whether individually or as
a member of a publicly disclosed “group” (as such term is used in Section 13(d)(3) of the Exchange Act), within the three-year
period immediately preceding such date: (i) publicly made, engaged in or been a participant in any “solicitation” of “proxies”
(as such terms are defined in Regulation 14A promulgated by the SEC) in connection with a proposed change in control or other extraordinary
or fundamental transaction involving any publicly traded company, or a public proposal for the election or replacement of any directors
of any such company, in each case not approved by the board of directors of such company prior to such Person taking such public action;
(ii) publicly called, or publicly sought to call, a meeting of stockholders of any publicly traded company or publicly initiated any stockholder
proposal or meeting agenda item for action by stockholders of any such company not approved by the board of directors of such company
prior to first public disclosure thereof; (iii) commenced a tender offer to acquire equity securities of any publicly traded company that
was not approved (at or before the time of commencement) by the board of directors of such company; or (iv) publicly disclosed any intention,
plan, arrangement or other agreement to do any of the foregoing; provided that the reporting by a Person of its ownership of the
securities of an issuer on Schedule 13G shall be deemed to establish conclusively that such Person is not an Activist Investor with respect
to such issuer for purposes of this definition, except to the extent such Person subsequently (but prior to the applicable Transfer) files
a Schedule 13D with respect to such issuer.
“Addendum to the
NDA” means the Addendum, dated as of June 3, 2026, between the Company and Investor, to the Confidentiality Agreement dated
as of May 28, 2026 between the Company and Investor.
“Affiliate”
means, with respect to any Person, any other Person who, as of the relevant time for which the determination of affiliation is being made,
directly or indirectly controls, is controlled by or is under common control with
such Person; provided that (i) the Company and its Subsidiaries shall not be deemed to be Affiliates of Investor or any of its
Affiliates, and (ii) Investor and its Affiliates shall not be deemed to be Affiliates of the Company or any of its Subsidiaries. For purposes
of this definition, “control” when used with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling”
and “controlled” have correlative meanings.
“Agreement”
has the meaning set forth in the Preamble.
“Applicable Law”
means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise),
constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement
enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person.
“Agents”
has the meaning set forth in Section 6.01(b)
“Associate”
has the meaning set forth in Rule 12b-2 under the Exchange Act and Associates of a specified Person shall include any other Person who,
as of the relevant time for which the determination of association is being made, is an Associate of such Person.
“Beneficially Own”
means, with respect to any securities, having “beneficial ownership” of such securities for purposes of Rule 13d-3 or Rule
13d-5 under the Exchange Act, and “Beneficial Ownership” shall have the corresponding meaning.
“Board”
means the Board of Directors of the Company.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“Change of Control”
means any transaction or series of related transactions pursuant to which (i) any Person or group (within the meaning of Section 13(d)(3)
of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of securities representing more than 50% of the voting power
of the outstanding Shares, (ii) the Company merges, consolidates or combines with any other Person and, immediately following such transaction,
the holders of Shares immediately prior to such transaction hold less than 50% of the voting power of the surviving entity or parent thereof,
or (iii) the Company sells, transfers or otherwise disposes of all or more than 50% of all of its consolidated assets.
“Closing”
has the meaning set forth in the Transaction Agreement.
“Code”
means the Internal Revenue Code of 1986.
“Competitor”
means, solely for purposes of the definition of “Prohibited Person” set forth in this Agreement, any Person (other than Investor
or any of its wholly owned Subsidiaries) (i) who engages in the business of manufacturing, distributing, developing, marketing or selling
crop protection chemicals (insecticides, herbicides
or fungicides), biologicals, crop nutrition or seed treatment products and such business is not a de minimis portion of all of
the business conducted by such Person or (ii) listed on Schedule A hereto, as such schedule may be updated from time to time by mutual
written agreement of the Company and Investor.
“Company”
has the meaning set forth in the Preamble.
“Confidential Information”
has the meaning set forth in Section 6.01(b).
“Corporate Opportunities”
has the meaning set forth in Section 2.06.
“Dilution Event”
means any issuance of Shares or rights or securities convertible into or exchangeable or exercisable for Shares by the Company (in the
case of such rights or securities, to the extent they have been converted, exchanged or exercised) that has resulted in a reduction of
Investor’s Percentage Interest to below 20%, other than any such issuance with respect to which Investor has exercised (or been
offered and declined to exercise) its purchase rights pursuant to Section 7.01.
“Designated Period”
means the period commencing on Closing and ending on the date on which Investor’s Percentage Interest falls below 10% of the outstanding
Shares; provided that, during such time that Investor has the Top-Up Right, for purposes of determining whether the Designated
Period has ended, any reduction in Investor’s Percentage Interest resulting solely from a Dilution Event shall not be taken into
account until the last day of the Company’s third fiscal quarter following the fiscal quarter in which Investor receives notice
from the Company that such Dilution Event occurred pursuant to Section 3.02(c).
“Director”
has the meaning set forth in Section 2.01(d).
“Director Qualifications”
has the meaning set forth in Section 2.01(c).
“Director Slate”
has the meaning set forth in Section 2.01(a).
“Exchange Act”
means the Securities Exchange Act of 1934.
“Exercise Notice”
has the meaning set forth in Section 7.01(b).
“Governmental Authority”
means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department,
court, agency or official, including any political subdivision thereof.
“Hedge”
means, with respect to any Shares, to enter into any swap or any other agreement, transaction or series of transactions that hedges or
transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such Shares, whether any such transaction,
swap or series of transactions is to be settled by delivery of securities, in cash or otherwise.
“Independent Director”
means a director of the Company who is independent under the NYSE listing rules.
“Investor”
has the meaning set forth in the Preamble.
“Investor Nominee”
has the meaning set forth in Section 2.01(a).
“Investor Shares”
has the meaning set forth in Section 3.01.
“Issuance Notice”
has the meaning set forth in Section 7.01(a).
“Lock Up Period”
means the period commencing on the date of this Agreement and ending on the three (3)-year anniversary of the date of this Agreement.
“Market Transfer”
means a Transfer of Shares effected through the facilities of the NYSE or any other national securities exchange on which the Shares are
then listed, or through a broker-dealer acting as agent in an ordinary brokerage transaction where Investor (i) does not actually
know the identity of the buyer of such Shares and (ii) solely in the case of an ordinary brokerage transaction, does not reasonably
believe that the Shares would be Transferred to a Prohibited Person.
“New Securities”
has the meaning set forth in Section 7.01(a).
“Nominating Committee”
has the meaning set forth in Section 2.01(c).
“NYSE”
means the New York Stock Exchange.
“Observer”
means a natural person designated by Investor to attend meetings of the Board in a non-voting, non-speaking observer capacity.
“Permitted Trading
Period” means a period of time between the end of a Quarterly Trading Blackout Period and the start of the next Quarterly Trading
Blackout Period.
“Permitted Transferee”
means any wholly-owned Subsidiary of Investor that agrees in writing to be bound by the provisions of this Agreement as if it were Investor
hereunder.
“Percentage Interest”
means, with respect to Investor at any time, the fraction (expressed as a percentage) that results from dividing (i) the number of Shares
that Investor and its Permitted Transferees collectively own at such time by (ii) the number of issued and outstanding Shares at such
time.
“Person”
means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including
a Governmental Authority.
“Prohibited Person”
means any Person to whom Shares are contemplated to be Transferred (a) that is a Competitor, (b) that is an Activist Investor, or
(c) that, after giving effect to such Transfer, would become a new Beneficial Owner of greater than 4.9% of the outstanding Shares.
“Quarterly Trading
Blackout Period” has the meaning set forth in the Company’s Policy Concerning Insider Trading or similar policy, as amended
from time to time.
“Registration Rights
Agreement” means that certain Registration Rights Agreement between the Company and Investor dated as of the date hereof.
“Restricted Period”
means the period commencing on Closing and ending on the date on which both (i) Investor’s Percentage Interest is below 10% of the
outstanding Shares and (ii) at least 12 months have passed since an Investor Nominee last served as a Director of the Company.
“SEC” means
the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Shares”
means the shares of common stock, par value $0.10 per share, of the Company.
“Shareholders Meeting”
has the meaning set forth in Section 3.01.
“Subsidiary”
means, with respect to any Person, any entity of which (i) a majority of the voting securities or (ii) securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions, are at the time
directly or indirectly owned by such first Person.
“Top-Up Right”
has the meaning set forth in Section 3.02(c).
“Transaction Agreement”
has the meaning set forth in the Recitals.
“Transfer”
means, with respect to any Shares, (i) when used as a verb, to sell, assign, dispose of, exchange, Hedge, pledge, encumber, hypothecate
or otherwise transfer such Shares or any participation or interest therein, whether directly or indirectly (including pursuant to a derivative
transaction or through the transfer of any equity securities in any direct or indirect company holding such Shares), or agree or commit
to do any of the foregoing and (ii) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, Hedge, pledge,
encumbrance, hypothecation, or other transfer of such Shares or any participation or interest therein or any agreement or commitment to
do any of the foregoing; provided that nothing in this Agreement shall prohibit any sale, assignment, disposition of, exchange,
Hedge, pledge, encumbrance, hypothecation, transfer or issuance of any equity securities of or in Investor.
(b)
Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder”
and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
References to Articles, Sections, Exhibits, Appendices and Schedules are to Articles, Sections, Exhibits, Appendices and Schedules of
this Agreement unless otherwise specified. All Exhibits, Appendices and Schedules annexed hereto or referred to herein are hereby incorporated
in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit, Appendix or Schedule but
not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are
in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer
to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall
be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to
any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or
through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”,
“laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law. The word “or”
means “and/or” unless the context provides otherwise. References to “dollars” or “$” shall mean U.S.
dollars, and whenever conversion of values to or from any currency other than U.S. dollars for a particular date shall be required, such
conversion shall be made using the closing rate provided by Bloomberg as of the date that is one Business Day prior to such date. References
to one gender shall be held to include the other gender as the context requires.
Article
2
Board Representation
Section 2.01. Board
Representation.
(a)
During the Designated Period, Investor shall have the right to nominate a candidate, subject, except as expressly set forth in
Section 2.01(b), to the requirements of Section 2.01(c) (the “Investor Nominee”) to (i) become a director
of the Company pursuant to Section 2.01(b) and (ii) be considered for inclusion in the slate of nominees recommended by the Board
to holders of Shares for election at any annual or special meeting of stockholders held for the election of directors of the Company (the
“Director Slate”). The Company shall use its reasonable best efforts to cause the election of each Investor Nominee
included in the Director Slate, including (A) recommending each such Investor Nominee for election in the Company’s proxy statement,
(B) including each such Investor Nominee on the Company’s proxy card, (C) soliciting proxies in favor of the election of each
such Investor Nominee in the same manner and to the same extent as for other Board nominees, and (D) otherwise supporting each such Investor
Nominee’s election in a manner consistent with the Company’s support for other Board nominees.
(b)
The initial Investor Nominee shall be Luc Tack, subject to Luc Tack qualifying as an Independent Director. For the avoidance of
doubt, Luc Tack’s nomination as the initial Investor Nominee pursuant to this Section 2.01(b) shall not be subject to Section
2.01(c), but subsequent nominations of Luc Tack to serve additional terms as the Investor Nominee at any annual or special meetings of
stockholders of the Company held for the election of directors of the Company shall be subject to Section 2.01(c). The Company
shall, at the first regularly scheduled meeting of the Board following the Closing, (i) increase the size of the Board by one member and
(ii) appoint the initial Investor Nominee to fill such vacancy. Such appointment shall be made by the Board in accordance with the Company’s
certificate of incorporation and bylaws, and the initial Investor Nominee shall serve until the next annual meeting of stockholders of
the Company and until a successor is duly elected and qualified. If Luc Tack does not qualify as an Independent Director, Investor shall
have the right to nominate another candidate to be the initial Investor Nominee in accordance with Section 2.01(c).
(c)
Each candidate nominated by Investor to be an Investor Nominee (including any then-current member of the Board who was an Investor
Nominee), except as expressly set forth in Section 2.01(b), shall be submitted to the Nominating and Corporate Governance Committee
of the Board (the “Nominating Committee”) for evaluation no later than (i) six (6) months prior to the expected date
of the annual meeting of stockholders for the election of directors for which such Investor Nominee is proposed to be included on the
Director Slate, and (ii) a reasonable date in advance of the special meeting of stockholders for the election of directors for which such
Investor Nominee is proposed to be included on the Director Slate (the date on which Investor is required to submit the Investor Nominee
pursuant to clauses (i) and (ii), the “Nomination Date”); provided that the Company shall notify Investor of
the Nomination Date at least 10 Business Days prior to such Nomination Date. The Nominating Committee shall evaluate each candidate nominated
by Investor to be an Investor Nominee in good faith against the qualifications for directors described in the Nominating Committee’s
Charter (the “Director Qualifications”), which shall be the same objective, written qualification standards applied
to all other Board nominees, and such candidate shall only be an Investor Nominee if such candidate meets the Director Qualifications.
If the Nominating Committee determines in good faith that such candidate does not satisfy the Director Qualifications, the Company shall
promptly notify Investor in writing, setting forth in reasonable detail the objective basis for such determination, and Investor shall
have the right to propose a substitute candidate to be the Investor Nominee within 15 Business Days of receipt of such notice, which substitute
shall be evaluated on the same basis; provided that if this process is conducted three times and the Nominating Committee has determined
in good faith that none of the three candidates nominated by Investor meets the Director Qualifications, no Investor Nominee shall be
designated in the pending Director Slate pursuant to Section 2.01(a) or vacancy pursuant to Section 2.01(d), without any
prejudice to Investor’s right to nominate candidates to be Investor Nominees for subsequent Director Slates or vacancies.
(d)
In the event that any Investor Nominee who becomes a member of the Board (a “Director”) shall cease to serve
as a Director for any reason during the Designated Period, the vacancy resulting therefrom shall be filled by the Board with a substitute
Investor Nominee designated by Investor in accordance with Section 2.01(c) as promptly as practicable and in any event within 60
Business Days of Investor’s designation of such candidate to be a substitute Investor Nominee. The Company shall take all necessary
corporate action to effect such appointment, including convening a meeting of the Board or Board action by written consent.
(e)
In the event that any Investor Nominee becomes a Director, during the Designated Period, the Company shall (i) provide such Investor
Nominee with notice of all Board meetings at the same time and in the same manner as notice is provided to other Directors, (ii) provide
such Investor Nominee with copies of all materials distributed to Directors in connection with such meetings (including agendas, presentations
and written consents) at the same time as such materials are distributed to Directors, and (iii) permit such Investor Nominee to
attend and participate in discussions at such meetings.
(f)
All obligations of the Company pursuant to Section 2.01 shall terminate, and Investor shall cause the Investor Nominee to
not stand for reelection as a Director at the next annual meeting of stockholders of the Company following the end of the Designated Period;
provided further that the Investor shall cause the Investor Nominee to resign from the Board immediately upon the end of the Designated
Period if there is more than six months between the end of the Designated Period and the conclusion of the next annual
meeting of stockholders of the Company.
Section 2.02. Director
Independence. Each Investor Nominee is required to qualify as an Independent Director to be included in a Director Slate.
Section 2.03. Observer.
During the Designated Period, Investor shall have the right to designate one (1) Observer to attend all meetings of the Board as an observer
without the right to vote or to speak. The Observer shall be Miguel de Potter or another individual reasonably acceptable to the Company.
The Company shall (a) provide the Observer with notice of all Board meetings at the same time and in the same manner as notice is provided
to directors, (b) provide the Observer with copies of all materials distributed to directors in connection with such meetings (including
agendas, presentations and written consents) at the same time as such materials are distributed to directors, and (c) permit the Observer
to attend and participate in discussions at such meetings in an observer capacity without the right to vote or to speak. Notwithstanding
the foregoing, the Observer shall not participate in any meeting or receive any materials (i) if the Investor Nominee has recused himself
or herself because he or she is reasonably likely to have a conflict of interest with respect to the subject matter of the meeting or
any portion of the meeting or pursuant to Section 2.05 or (ii) to the extent that the Observer’s attendance or receipt
of such materials is reasonably likely to adversely affect the existence of legal privilege or would not be permitted pursuant to confidentiality
agreements with third parties or under Applicable Law. The Observer shall not be entitled to receive any compensation or reimbursement
of expenses from the Company for services as an observer, and shall not participate in private or executive sessions of the Board, other
sessions of the Board in which management of the Company (excluding the Chief Executive Officer) is not present, or any Board committee
meetings.
Section 2.04. Director
and Observer Confidentiality. Each Investor Nominee and Observer shall keep confidential any information about the Company
and its Affiliates he or she receives as a result of being a Director or an Observer; provided that each Investor Nominee and Observer
shall be permitted to disclose to Investor (and to Investor’s officers, directors, employees, legal counsel, accountants and financial
advisors solely to the extent that such Persons are subject to confidentiality obligations regarding the use and disclosure of such information
at least as restrictive as those in this Section 2.04, and Investor shall be responsible for any breach of the obligations of this
Section 2.04 by such Persons to the same extent as if such Persons were “Investor Nominee” hereunder) information about
the Company and its Affiliates that he or she receives as a result of being a Director solely to the extent necessary for Investor to:
(a) prepare its financial statements and filings pursuant to any Applicable Laws or stock exchange requirements; (b) manage and monitor
Investor’s investment in the Company; (c) exercise Investor’s rights under this Agreement, the Transaction Agreement
or the Registration Rights Agreement; (d) comply with applicable legal, regulatory or reporting obligations; or (e) obtain legal,
accounting, tax or financial advice in connection with the foregoing. Investor shall be responsible for any breach of this Section
2.04 by an Investor Nominee or Observer.
Section 2.05. Recusal.
(a)
If Investor were to become a competitor of the Company, as reasonably determined by the Board (excluding the Investor Nominee),
any Investor Nominee who is a Director and any Observer shall be required to recuse himself or
herself from participating in any competitively sensitive deliberations or discussions of the Board, as reasonably determined by the Board
(excluding the Investor Nominee). The Company agrees and acknowledges that, as of the date hereof, Investor is deemed to not be a competitor
of the Company or its Subsidiaries, and the business of Investor is deemed to not be competing with any business of the Company or its
Subsidiaries, in each case, for purposes of this Section 2.05.
(b)
On any matter involving the Company or any of its Subsidiaries, on the one hand, and Investor or any of its Affiliates, on the
other hand, any Investor Nominee that is a Director and any Observer shall be excluded from any discussions of the Board or any committee
thereof regarding the same and shall not be provided with any materials related to such matter.
Section 2.06. Corporate
Opportunities.
(a)
To the fullest extent permitted by the laws of Delaware, in the event that: (i) an Investor Nominee who is a Director is also a
director, officer or employee of Investor and acquires knowledge, solely in his or her capacity as a Director, of a potential transaction
or matter that may be a Corporate Opportunity for both the Company and Investor, such a Corporate Opportunity shall belong to the Company
if such opportunity is expressly offered to such Investor Nominee solely in his or her capacity as a Director; and (ii) a director of
Investor who is also an officer or employee of the Company acquires knowledge of a potential transaction or matter that may be a Corporate
Opportunity for both the Company and Investor, such a Corporate Opportunity shall belong to the Company unless such opportunity is expressly
offered to such director of Investor solely in his or her capacity as a director of Investor.
(b)
“Corporate Opportunities” include business opportunities that the Company or any of its Subsidiaries is financially
able to undertake, which are, from their nature, in the line of the Company’s or its Subsidiaries’ business, are of practical
advantage to it and are ones in which the Company or its Subsidiaries would have an interest or a reasonable expectancy.
(c)
The Company, to the fullest extent permitted by Applicable Law, renounces any interest or expectancy in any such Corporate Opportunity
that is offered to an Investor Nominee solely in his or her capacity as a Director and is declined by the Company as determined by the
Board.
(d)
Investor shall be responsible for any breach of this Section 2.06 by an Investor Nominee or director of Investor, in each
case, to the extent such breach benefits Investor. The Director who is an Investor Nominee may require the submission to the Board of
a Corporate Opportunity expressly offered to such Director solely in his or her capacity as Director in order to determine if the Company
wishes to pursue or decline such Corporate Opportunity. If the Company declines such Corporate Opportunity, the Company waives any claim
against such Director that such Director is liable to the Company or its stockholders for breach of any fiduciary duty solely by reason
of the fact that such Director (i) pursues or acquires such Corporate Opportunity for his or her own account or the account of Investor
or any of its Affiliates, (ii) directs, recommends, sells, assigns or otherwise transfers such Corporate Opportunity to Investor
or (iii) does not communicate any further information regarding such Corporate Opportunity to the Company.
Section 2.07. Non-Transferable. Investor’s
rights to nominate an Investor Nominee or an Observer pursuant to this Article 2 are personal to Investor and are not transferable
to, and may not be exercised by, any other Person (including any Permitted Transferee) other than Investor, whether in a Transfer of Shares
or otherwise.
Article
3
Voting; Standstill Provisions
Section 3.01. Voting. Until
the end of the Restricted Period, at each annual or special meeting of stockholders of the Company (each, a “Shareholders Meeting”),
Investor shall (a) cause to be present for quorum purposes all Shares Beneficially Owned by Investor or any of its Affiliates or
Associates (the “Investor Shares”), and (b) cause the Investor Shares to be voted on the Company’s proxy card
(i) in favor of the election of all of the director nominees recommended for election to the Board by the Board (including any Investor
Nominee included in the Director Slate) and against any director nominees recommended for election to the Board by stockholders of the
Company and not by the Board, and (ii) to ratify the appointment of the Company’s independent registered public accounting firm,
and (iii) in accordance with the Board’s recommendation on all other proposals except for a proposal with respect to a Change of
Control.
Section 3.02. Standstill
Restrictions1..
(a)
So long as Investor or any of its Permitted Transferees holds any Shares, Investor shall not, and shall cause its Affiliates and
Associates and any Person acting on behalf of or in concert with Investor or any of its Affiliates or Associates not to, directly or indirectly,
take any of the following actions without the prior written consent of the Board (excluding any Investor Nominee):
(i)
acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or
assets of the Company or any of its Subsidiaries, or any option, warrant, forward contract, swap, contract of sale, other derivative or
similar agreement, or other direct or indirect right to acquire any securities or assets of the Company or any of its Subsidiaries;
(ii)
enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring
or other extraordinary transaction involving the Company or any of its Subsidiaries;
(iii)
initiate, encourage, make, or in any way participate or engage in, any “solicitation” of “proxies” as such
terms are used in the proxy rules of the SEC to vote, or seek to advise or influence any person with respect to the voting of, any voting
securities of the Company (including, for the avoidance of doubt, indirectly by means of communication with the press or the media), except
in the Investor Nominee’s capacity as a Director and in accordance with the recommendations of the Board;
(iv)
file with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its
stockholders that would be required to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act, except for
any proxy statement or soliciting materials filed by the Company;
(v)
nominate or recommend for nomination a person for election at any Shareholders Meeting, except for confidential nominations of
the Investor Nominee pursuant to this Agreement;
(vi)
submit any shareholder proposal for consideration at, or bring any other business before, any Shareholders Meeting, except for
any business brought by the Board;
(vii)
initiate, encourage, make, or in any way participate or engage in, any “withhold” or similar campaign with respect
to any Shareholders Meeting;
(viii)
form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with
respect to any voting securities of the Company;
(ix)
call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the stockholders of the Company,
except as done by the Board;
(x)
act, alone or in concert with others, to seek to control or influence the management or the policies of the Company, other than
in the Investor Nominee’s capacity as a Director;
(xi)
deposit any Shares in any voting trust or similar arrangement or subject any Shares to any arrangement or agreement with respect
to the voting or pooling of any Shares, in each case, other than as required pursuant to Section 3.01.
(xii)
grant any proxy with respect to any Shares (other than to a designated representative of the Company pursuant to a proxy statement
of the Company);
(xiii)
make any request for stockholder list material or other books and records of the Company other than pursuant to Section
5.01 or Section 5.02 of this Agreement;
(xiv)
institute, solicit, assist or join any litigation, arbitration, suit or other proceeding against or involving the Company or any
of its Subsidiaries or any of its or their current or former directors or officers (including derivative actions) in order to effect or
take any of the above actions;
(xv)
seek a release of the restrictions contained in this Section 3.02, in any manner that would require public disclosure thereof;
(xvi)
publicly disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; or
(xvii)
advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection
with the foregoing;
provided that the foregoing
shall not prevent Investor from (A) submitting confidential proposals to the Company or the Board, (B) voting the Investor Shares as expressly
permitted by Section 3.01 or (C) making any disclosure required by Applicable Law; provided that such disclosure
is not required in connection with a breach of this Section 3.02.
(b)
The restrictions in Section 3.02 shall be of no further force and effect upon the earliest to occur of: (i) any person (other
than Investor or its Affiliates or Associates) becoming the Beneficial Owner of 50% or more of the outstanding Shares; (ii) any person
(other than Investor or its Affiliates or Associates) acquiring 50% or more of the consolidated assets of the Company; (iii) the
commencement of a tender or exchange offer that has been recommended to stockholders of the Company by the Board and that, if consummated,
would result in any person (other than Investor or its Affiliates or Associates) becoming the Beneficial Owner of 50% or more of the outstanding
Shares; (iv) the Company entering into a definitive agreement providing for any transaction that, if consummated, would result in any
of the events described in clauses (i), (ii) or (iii); or (v) Investor ceasing to hold any Shares.
(c)
Notwithstanding Section 3.02(a), if a Dilution Event has occurred, Investor and its Affiliates shall be permitted
to acquire Shares in open-market or privately negotiated transactions on no more than 15 trading days in each Permitted Trading Period,
without the prior written consent of the Company; provided that after giving effect to any such acquisition, Investor’s Percentage
Interest shall not exceed 20% of the outstanding Shares at the time of such acquisition (and, for the avoidance of doubt, following the
occurrence of such Dilution Event) (the “Top-Up Right”); provided, further, that such Top-Up Right shall
terminate upon the earlier to occur of (i) any Transfer of Shares by Investor or any of its Affiliates (other than a Transfer to a Permitted
Transferee), (ii) Investor declining to exercise its purchase rights pursuant to Section 7.01 with respect to any issuance
of New Securities and (iii) Investor failing to acquire additional Shares prior to the last day of the Company’s third fiscal quarter
following the Applicable Quarter in which Investor receives notice from the Company that the Dilution Event occurred pursuant to the next
sentence such that, after giving effect to any such acquisition, Investor’s Percentage Interest would equal 20% of the outstanding
Shares as of such Applicable Quarter. As promptly as reasonably practicable and no later than five (5) Business Days following
the last day of each fiscal quarter of the Company (an “Applicable Quarter”), the Company will provide written notice
to Investor, which written notice shall set forth (i) the number of outstanding Shares as of the last day of such Applicable Quarter,
and (ii) the number of Shares that Investor would need to purchase to own 20% of the outstanding Shares as of the last day of such
Applicable Quarter.
(d)
Each of the Company and Investor agrees that this Section 3.02 supersedes Section 2 and 3 of the Addendum to the NDA,
which shall be of no further force or effect.
Section 3.03 Closing
Top-Up Right. Immediately following the Closing, the Company shall provide written notice to Investor, which written notice
shall set forth (a) the number of outstanding Shares immediately following the consummation of the Closing, and (b) the number
of Shares that Investor would need to purchase to own 20% of the outstanding Shares immediately following the consummation of the Closing. Notwithstanding
Section 3.02(a), Investor and its Affiliates shall be permitted to acquire Shares in open-market or privately negotiated
transactions on no more than twenty (20) Business Days in the next Permitted Trading Period immediately following the Closing, without
the prior written consent of the Company; provided that after giving effect to any such acquisition, Investor’s Percentage
Interest shall not exceed 20% of the outstanding Shares.
Article
4
Transfer Restrictions
Section 4.01. Transfer
Restrictions.
(a)
During the Lock Up Period, Investor and its Affiliates shall not Transfer any Shares, except for:
(i)
Transfers to any Permitted Transferee;
(ii)
Transfers pursuant to a Change of Control transaction that has been approved or recommended by the Board, or pursuant to a tender
or exchange offer that has been recommended to stockholders of the Company by the Board;
(iii)
participation in any stock split, reverse stock split, rights offering, recapitalization, reclassification or similar transaction
effected by the Company on a pro rata basis with respect to all holders of Shares; or
(iv)
Transfers with the prior written consent of the Company.
(b)
In the event that during the Lock Up Period any Person who was a Permitted Transferee ceases to be a wholly-owned Subsidiary of
Investor, then any prior Transfer to such Person pursuant to Section 4.01(a)(i) shall become null and void and ownership and title
to any such Shares so Transferred shall revert to Investor. Investor shall be responsible for any breach of this Agreement by any Permitted
Transferee.
Section 4.02. Prohibited
TransfersSection 4.03. Notwithstanding anything to the contrary in this Agreement, Investor and its Affiliates shall not
Transfer its Shares at any time to any Prohibited Person; provided that the foregoing restrictions shall not apply to any Transfer
effected through a widely distributed underwritten public offering registered under the Securities Act or to any Market Transfer.
Article
5
Information
Section 5.01 Financial
Information. During the Designated Period, the Company shall use its reasonable best efforts to provide information to
Investor’s external auditor relating to the Company that is reasonably requested by Investor’s external auditor and that is
reasonably necessary for Investor’s external auditor’s quarterly financial reviews and annual audit in a timely manner so
as to enable Investor to meet its timetable for the preparation, filing and public dissemination of the financial statements and other
required reports of Investor and its Affiliates; provided that (a) the Company is not required to provide any work papers, and
(b) Investor’s external auditor shall execute a customary confidentiality agreement with the Company.
Section 5.02 Other Information
and Access Rights. During the Designated Period, the Company shall, and shall cause each of its Subsidiaries to furnish
Investor with copies of such reports, documents and other information in the Company’s or its Subsidiaries’ possession and
in the same form and format as already in the Company’s
or its Subsidiaries’ possession as Investor may reasonably request and that is reasonably necessary for Investor to comply with
its accounting, financial reporting, legal, regulatory, stock exchange, tax or sustainability obligations, sufficiently in advance of
Investor’s proposed related deadlines in accordance with Investor’s past practice and Applicable Law. Notwithstanding the
foregoing, nothing in this Section 5.02 shall require the Company or any of its Subsidiaries to provide any access, or to disclose
any (a) information if providing such access or disclosing such information would violate any Applicable Law or contract with a third
party, (b) communications between the Company and its investment bankers, attorneys, accountants and other advisors or (c) information
protected by attorney-client privilege or other applicable legal privilege; provided that, in the case of clauses (a) and
(c), the Company shall (i) use its reasonable best efforts to (A) allow for such access or disclosure to the maximum extent
that would not violate any such Applicable Law or contract or jeopardize the protection of the attorney-client privilege or other applicable
legal privilege, (B) take any actions as may be reasonably requested by Investor to implement alternative arrangements in order to
allow Investor reasonable access to such information, including by obtaining the required consents, clearances, approvals or waiver of
any third party required to provide such information, and implementing appropriate and mutually agreeable measures to permit the disclosure
of such information in a manner that removes the basis for the objection, and (C) not intentionally take any action for the principal
purpose of inhibiting Investor’s access to such information.
Section 5.03 U.S. Real
Property Holding Corporation. At Investor’s request from time to time while Investor owns Shares, the Company shall
use commercially reasonable efforts to determine as promptly as practicable whether it is a USRPHC and shall use commercially reasonable
efforts to promptly notify Investor in writing of its determination of its status as a USRPHC (and if in connection with a sale by Investor
of its Shares, shall, to the extent the Company determines that Shares are not United States real property interests under Code Section
897, use commercially reasonable efforts to promptly provide to such Investor a statement in accordance with Treasury Regulations Section
1.897-2(h)(1) where it determines the interest being sold is not a United States real property interest within the meaning of Section
897 of the Code).
Article
6
Confidentiality
Section 6.01. Confidentiality.
(a)
Investor agrees that Confidential Information may be made available to Investor in connection with Investor’s investment
in the Company. Investor agrees that it shall use, and that it shall cause any Person to whom Confidential Information is disclosed pursuant
to clause (i) below to use, the Confidential Information only (x) in connection with its investment in the Company and (y) for internal
compliance, audit, accounting, tax or risk management of Investor and its Affiliates. Investor further acknowledges and agrees that it
and its Permitted Transferees and its and their respective Agents shall not disclose any Confidential Information to any Person, except
that Confidential Information may be disclosed:
(i)
to Investor’s Agents in the normal course of the performance of their duties or to any financial institution providing credit
to Investor;
(ii)
to any bona fide prospective purchaser of any equity securities of the Company from Investor (and to such prospective purchaser’s
Agents); provided that such prospective purchaser shall first have entered into a customary written confidentiality agreement with
the Company on terms no less restrictive than those set forth in this Section 6.01; provided, further that the Company
shall not unreasonably withhold, condition or delay its entry into any such agreement;
(iii)
to the extent required by Applicable Law (including complying with any oral or written questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar process to which Investor is subject; provided that Investor
agrees to give the Company prompt notice of such request, to the extent practicable and permitted by Applicable Law, so that the Company
may seek an appropriate protective order or similar relief (and Investor shall cooperate with such efforts by the Company, and shall in
any event make only the minimum disclosure required by such Applicable Law);
(iv)
to any regulatory authority or rating agency to which Investor or any of its Affiliates is subject or with which it has regular
dealings; provided that such authority or agency is advised of the confidential nature of such information;
(v)
to the extent related to the tax treatment and tax structure of the transactions contemplated by this Agreement (including all
materials of any kind, such as opinions or other tax analyses that the Company, its Affiliates or its Agents have provided to Investor
relating to such tax treatment and tax structure); or
(vi)
if the prior written consent of the Board shall have been obtained.
Nothing contained herein shall
prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion
or defense of any claim by or against the Company.
(b)
“Confidential Information” means any information concerning the Company or any of its Subsidiaries or the financial
condition, business, operations or prospects of the Company or any of its Subsidiaries in the possession of or furnished to Investor in
connection with its investment in the Company that is proprietary or confidential; provided that the term “Confidential Information”
does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by Investor
or its Affiliates, or its and their directors, officers, employees, stockholders, members, partners, agents, counsel, investment advisers
or other representatives (all such persons being collectively referred to as “Agents”) in violation of this Agreement,
(ii) was available to Investor on a non-confidential basis prior to its disclosure to Investor or its Agents by the Company, (iii) becomes
available to Investor on a non-confidential basis from a source other than the Company after the disclosure of such information to Investor
or its Agents by the Company, which source is (at the time of receipt of the relevant information) not, to the best of Investor’s
knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company, or (iv) is or was independently
developed by Investor or its Agents without violating any confidentiality agreement with the Company. Nothing in this Section 6.01 shall
limit any other confidentiality obligations among the parties to this Agreement pursuant to any other agreement.
(c)
Investor agrees that it will use commercially reasonable efforts to ensure that any director of Investor that is also an officer
or employee of the Company or any its Subsidiaries (a “Dual Person”) will not receive Confidential Information from
the Investor or its Agents, and that Investor and its Agents will not seek to obtain from such Dual Person any Confidential Information.
Article
7
Purchase Rights; Repurchase
Section 7.01. Purchase
Rights.
(a)
During the Designated Period, the Company shall give Investor written notice (an “Issuance Notice”) of any proposed
issuance by the Company of any Shares or any securities convertible into or exchangeable or exercisable for Shares (the “New
Securities”) at least 30 days prior to the proposed issuance date. The Issuance Notice shall set forth the price at which such
New Securities are to be issued (or, in the case of a registered public offering, the anticipated price or range of anticipated prices),
and all other material terms and conditions of such issuance. Investor shall be entitled to purchase up to its Percentage Interest
(as determined immediately before giving effect to such issuance) of the aggregate number of New Securities proposed to be issued, at
the price and on the terms and conditions specified in the Issuance Notice; provided that in no event shall Investor purchase any
New Securities pursuant to this Section 7.01 that would result in Investor having a Percentage Interest of more than 20% after
giving effect to such issuance and Investor’s exercise of its rights pursuant to this Section 7.01.
(b)
If Investor desires to purchase any or all of its Percentage Interest of the New Securities specified in the Issuance Notice, it
shall deliver written notice to the Company (each, an “Exercise Notice”) of its election to purchase such New Securities
within 30 days after its receipt of the Issuance Notice. The Exercise Notice shall specify the number of New Securities to be purchased
by Investor and shall constitute exercise by Investor of its rights under this Section 7.01 and a binding agreement of Investor
to purchase, at the price and on the terms and conditions specified in the Issuance Notice, the number of New Securities specified in
the Exercise Notice. If, at the termination of the applicable period, Investor shall not have delivered an Exercise Notice to the Company,
Investor shall be deemed to have waived its rights under this Section 7.01 only with respect to the purchase of such New Securities
described in such Issuance Notice, but such waiver shall not affect Investor’s rights with respect to any future issuances.
(c)
The Company shall have 90 days from the date of the Issuance Notice to consummate the proposed issuance of any or all of the New
Securities that Investor has not elected to purchase on substantially the same or more favorable (as to the Company) terms and conditions
as were set forth in the Issuance Notice with respect to such New Securities at a price not less than the price set forth in such Issuance
Notice; provided that, if such issuance is subject to regulatory approval, such 90-day period shall be extended until the expiration
of five Business Days after all such approvals have been received; provided further that such issuance shall be consummated within
180 days of the date of the Issuance Notice. If the Company proposes to issue any such New Securities after such 90-day (or 180-day) period,
it shall again comply with the procedures set forth in this Section 7.01
(d)
At the consummation of the issuance of such New Securities, the Company shall issue the New Securities to be purchased by Investor
exercising its rights pursuant to this Section 7.01 registered in the name of Investor, against payment by Investor of the purchase
price for such New Securities in accordance with the terms and conditions as specified in the Issuance Notice.
(e)
Notwithstanding the foregoing, Investor shall not be entitled to purchase New Securities as contemplated by this Section
7.01 in connection with: (i) issuances of New Securities to officers, directors, employees or service providers of the Company or any
of its Subsidiaries pursuant to equity incentive plans approved by the Board; (ii) issuances of New Securities as consideration (and not
for cash) in any bona fide, arm’s length direct or indirect merger, acquisition, disposition or similar transaction approved by
the Board; (iii) issuances of any New Securities in connection with any conversion, exchange, dividend spin-off, split-off or combination,
recapitalization, reorganization, merger, consolidation, Reverse Morris Trust or other business combination transaction approved by the
Board; (iv) issuances in connection with a dividend investment plan; or (v) issuances upon the conversion, exchange or exercise of any
security or right or purchase obligation.
(f)
In the event that Investor is not entitled to acquire any New Securities pursuant to this Section 7.01 because such issuance
would require the Company to obtain stockholder approval in respect of the issuance of such New Securities to Investor pursuant to the
rules and listing standards of the NYSE, the Company shall, upon Investor’s reasonable request delivered to the Company in writing
within 5 Business Days following its receipt of the Issuance Notice, at Investor’s election: (i) consider and discuss in good faith
modifications proposed by Investor to the terms and conditions of such New Securities such that the Company would not be required to obtain
stockholder approval in respect of the issuance of such New Securities as so modified; and/or (ii) solely to the extent that stockholder
approval is required in connection with the issuance of New Securities to Persons other than Investor, use reasonable best efforts to
seek stockholder approval in respect of the issuance of New Securities to Investor.
(g)
In the case of an offering of New Securities for consideration in whole or in part other than cash, including securities acquired
in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the
fair value thereof as reasonably determined by the Board.
Section 7.02. Non-Transferable. Investor’s
purchase rights pursuant to Section 7.01 are personal to Investor and are not transferable to, and may not be exercised by, any
other Person other than Investor, whether in a Transfer of Shares or otherwise.
Section 7.03. Repurchase. If
at any time the Company desires to effect any redemption, repurchase, buyback or other acquisition of any Shares from the Company’s
stockholders (“Share Buyback”), which, after giving effect to such Share Buyback, would result in the Percentage Interest
of Investor exceeding 20% if Investor does not Transfer Shares to the Company in connection with such transaction, Investor shall, if
requested by the Company, Transfer and cause its Permitted Transferees to Transfer, a number of Shares to the Company on the same terms
as all other sellers in such Share Buyback such that
following such Share Buyback Investor’s Percentage Interest is no more than 20%.
Article
8
Termination
Section 8.01 Termination. This
Agreement shall terminate:
(a)
upon the mutual written agreement of the Company and Investor; or
(b)
at such time as Investor ceases to Beneficially Own any Shares.
Article
9
Miscellaneous
Section 9.01 Notices. Any
notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be given (a) when
delivered if personally delivered to the party for whom it is intended, (b) when delivered, if sent by electronic mail during normal business
hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day, provided no rejection
or undeliverable notice is received, (c) three days after having been sent by certified or registered mail, return-receipt requested and
postage prepaid, or (d) one Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next
business day delivery, with written verification of receipt:
if to the Company, to:
FMC Corporation
2929 Walnut Street
Philadelphia, Pennsylvania 19104
Attention: Sara Ponessa
Email: [***]
with a copy (which shall not constitute notice):
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10028
Attention: William Aaronson, Cheryl Chan
Email: william.aaronson@davispolk.com, cheryl.chan@davispolk.com
if to Investor, to:
Tessenderlo Group NV
130 Rue du Trône
1050 Brussels
Belgium
Attention: Miguel de Potter; Anne Mie Vanwalleghem
E-mail: [***]
with a copy (which shall not constitute notice):
Stibbe
25 Rue de Loxum
1000 Brussels
Belgium
Attention: Jan Peeters
Telephone: +32 2 533 52 11
Email: jan.peeters@stibbe.com
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN
United Kingdom
Attention: Nikolaos G. Andronikos; Mimi Wu; Tyler W. Hill
Telephone: +44 20 7959 8900
E-mail: andronikosn@sullcrom.com; wum@sullcrom.com; hillty@sullcrom.com
or such other address, facsimile
number or email address as such party may hereafter specify for the purpose by notice to the other party hereto.
Section 9.02 Amendments
and Waivers. (a) Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed by each of the Company and Investor, or in the case of
a waiver, by the party against whom the waiver is to be effective.
(b)
No failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03 Expenses. Except
as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such
cost or expense.
Section 9.04 Successors
and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns; provided that no party hereto may assign,
delegate or otherwise transfer any of its rights or obligations under this Agreement.
Section 9.05 Governing
Law; Submission to Jurisdiction; Venue; Waiver of Trial by Jury. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware without regard to choice of laws or conflicts of laws provisions thereof that would
require the application of the laws of any other jurisdiction, except to the extent that mandatory principles of Delaware law may apply.
(b)
The Company and Investor hereby each irrevocably and unconditionally:
(i)
submits for itself and its property in any legal action or proceeding relating solely to this Agreement or the transactions contemplated
hereby, to the general jurisdiction of any state court or United States Federal court sitting in the City of Wilmington in the State of
Delaware;
(ii)
consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same to the extent permitted by applicable law;
(iii)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in Section
9.01 or at such other address of which the other party shall have been notified pursuant thereto;
(iv)
agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced
in the foregoing clause (i) are not available despite the intentions of the parties hereto;
(v)
agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any
jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party
in the manner specified herein or as otherwise permitted by law;
(vi)
agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations
under this Agreement, to the extent permitted by law; and
(vii)
irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement.
Section 9.06 Counterparts;
Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party hereto has received
a counterpart hereof signed by the other parties hereto, this Agreement shall have no effect and no party hereto shall have any right
or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
Section 9.07 Entire
Agreement. This Agreement and the other Transaction Agreements (as defined in the Transaction Agreement) constitute the
entire agreement between the parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.
Section 9.08 Severability. If
any part or provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or in conflict with the applicable
laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes,
to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of
this Agreement shall remain binding upon the parties hereto.
Section 9.09 Specific
Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed
in accordance with the terms hereof and that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which
they are entitled at law or in equity.
Section 9.10 Representations
and Warranties of the Company. The Company represents and warrants to Investor that:
(a)
Corporate Existence and Power. The Company is a corporation duly organized, validly existing and in good standing
(with respect to jurisdictions that recognize such concept) under the laws of its jurisdiction of organization and has all corporate powers
required to carry on its business as now conducted.
(b)
Corporate Authorization. The authorization, execution, delivery and performance by the Company of this Agreement
and the consummation of the transactions contemplated hereby by the Company are within the Company’s corporate powers and have been
duly authorized by all necessary corporate action on the part of the Company. This Agreement constitutes a valid and binding agreement
of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
(c)
Governmental Authorization. The authorization, execution, delivery and performance by the Company of this Agreement
and the consummation of the transactions contemplated hereby by the Company require no action by or in respect of, or filing with, any
Governmental Authority other than any such action or filing the failure of which to obtain or make would not reasonably be expected to, individually
or in the aggregate, prevent, materially delay or materially impede the performance by the Company of its obligations under this Agreement
or the Company’s consummation of the transactions contemplated by this Agreement.
(d)
Noncontravention. The execution, delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby by the Company do not and will not (i) violate the certificate of incorporation or bylaws of the
Company, (ii) violate any Applicable Law, (iii) require any consent or other action by any Person under, constitute a default or an event
that, with or without notice or lapse of time or both, would constitute a default under, or give rise to any right of termination, cancellation
or acceleration of any right or obligation of the Company or to a loss of any benefit to which the Company is entitled under, any provision
of any material agreement binding upon the Company, or (iv) result in the creation or imposition of any lien on any asset of the Company,
except, in the case of clauses (ii) through (iv), as would not reasonably be expected to, individually or in the aggregate, prevent, materially
delay or materially impede the performance by the Company of its obligations under this Agreement or the Company’s consummation
of the transactions contemplated by this Agreement.
Section 9.11 Representations
and Warranties of Investor. Investor represents and warrants to the Company that:
(a)
Corporate Existence and Power. Investor is a public limited company, duly organized, validly existing and in
good standing (with respect to jurisdictions that recognize such concept) under the laws of its jurisdiction of organization and has all
corporate powers required to carry on its business as now conducted.
(b)
Corporate Authorization. The execution, delivery and performance by Investor of this Agreement and the consummation
of the transactions contemplated hereby by Investor are within Investor’s corporate powers and have been duly authorized by all
necessary corporate action on the part of Investor. This Agreement constitutes a valid and binding agreement of Investor enforceable against
Investor in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws affecting creditors’ rights generally and general principles of equity).
(c)
Governmental Authorization. The execution, delivery and performance by Investor of this Agreement and the consummation
of the transactions contemplated hereby by Investor require no action by or in respect of, or filing with, any Governmental Authority
other than any such action or filing the failure of which to obtain or make would not reasonably be expected to, individually or in the
aggregate, prevent, materially delay or materially impede the performance by Investor of its obligations under this Agreement or Investor’s
consummation of the transactions contemplated by this Agreement.
(d)
Noncontravention. The execution, delivery and performance by Investor of this Agreement and the consummation
of the transactions contemplated hereby by Investor do not and will not (i) violate the certificate of incorporation, bylaws, articles
of formation, operating company agreement or similar organizational documents of Investor, (ii) violate any Applicable Law, (iii) require
any consent or other action by any Person under, constitute a default or an event that, with or without notice or lapse of time or both,
would constitute a default under, or give rise to any right of termination, cancellation or acceleration
of any right or obligation of Investor or to a loss of any benefit to which Investor is entitled under, any provision of any material
agreement binding upon Investor or (iv) result in the creation or imposition of any lien on any asset of Investor, except, in the case
of clauses (ii) through (iv), as would not reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially
impede the performance by Investor of its obligations under this Agreement or Investor’s consummation of the transactions contemplated
by this Agreement.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed
or caused to be executed on their behalf this Agreement as of the date first written above.
FMC CORPORATION
By:
/s/ Andrew D. Sandifer
Name:
Andrew D. Sandifer
Title:
Executive Vice President and Chief Financial Officer
TESSENDERLO GROUP NV
By:
/s/ Luc Tack
Name:
Luc Tack
Title:
Chief Executive Officer
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: dp253498_ex1002.htm · Sequence: 3
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (as amended,
restated, supplemented or otherwise modified from time to time, this “Agreement”) is dated as of September 23, 2026,
and is among FMC Corporation, a Delaware corporation (the “Company”), Tessenderlo Group NV, a public limited company
incorporated under the laws of Belgium (the “Investor”) and the other Securityholders (as defined below) party hereto
from time to time.
WHEREAS:
A.
Upon the terms and subject to the conditions of the Stock Purchase Agreement by and between the Company and the Investor, dated
as of June 30, 2026 (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”),
the Company has agreed to issue to the Investor, and the Investor has agreed to purchase, 30,319,166 shares of the Company’s common
stock, par value $0.10 per share (the “Common Stock”).
B.
To induce the Investor to enter into the Purchase Agreement, the Company has agreed to provide certain registration rights under
the Securities Act (as defined below), and applicable state securities laws.
NOW, THEREFORE, in
consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:
Article
1
Definitions
In this Agreement:
“Agreement”
has the meaning set forth in the preamble.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York authorized or required by law or other governmental action to close.
“Common Stock”
has the meaning set forth in the recitals.
“Company”
has the meaning set forth in the preamble.
“Demand Notice”
has the meaning set forth in Section 2.01(a) hereof.
“Equity Securities”
means shares of Common Stock, shares of any other class of common or preferred stock of the Company and any options, warrants, rights
or Securities of the Company convertible into or exchangeable or exercisable for common or preferred stock of the Company.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
“FINRA”
means the Financial Industry Regulatory Authority, Inc.
“Form S-1”
has the meaning set forth in Section 2.01(a).
“Form S-3”
has the meaning set forth in Section 2.01(a).
“Investor Agreement”
means the Investor Agreement between the Company and the Investor dated as of the date hereof.
“Lock Up Period”
has the meaning set forth in the Investor Agreement.
“Permitted Transferee”
shall mean (i) any wholly-owned Subsidiary of Investor that agrees in writing to be bound by the provisions of the Investor Agreement
as if it were Investor thereunder or (ii) any other Person to whom Investor transfers Registrable Securities with the consent of
the Company that agrees in writing to be bound by the provisions of the Investor Agreement as if it were Investor thereunder.
“Person”
means any natural person, corporation, company, partnership (general or limited), limited liability company, trust or other entity.
“Purchase Agreement”
has the meaning set forth in the recitals.
“Registrable Securities”
means (i) any shares of Common Stock held or beneficially owned by any Securityholder, (ii) any shares of Common Stock issued or issuable
to any Securityholder upon the conversion, exercise or exchange, as applicable, of any other Equity Securities held or beneficially owned
by the Securityholder and (iii) any shares of Common Stock issued or issuable to any Securityholder with respect to any shares described
in clauses (i) and (ii) above by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise
in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other reorganization or other similar
event. For purposes of this Agreement, Registrable Securities shall cease to be Registrable Securities (A) when such Registrable
Securities have been disposed of pursuant to a registration statement covering resales of such Registrable Securities that has been declared
effective under the Securities Act by the SEC or (B) when such Registrable Securities are eligible to be sold by the Securityholder pursuant
to Rule 144 or 145 (or any similar provision then in effect) under the Securities Act, without limitation thereunder on volume or manner
of sale, unless the applicable Securityholder holds or beneficially owns Equity Securities representing 5% or more of the aggregate voting
power of shares of Common Stock eligible to vote in the election of directors of the Company, in which case such Securities shall continue
to be Registrable Securities.
“Registration Expenses”
means any and all expenses incurred in connection with the performance of or compliance with this Agreement, including:
(a) all SEC, stock exchange, or FINRA 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, 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 or FINRA and all rating agency fees;
(e) the fees and disbursements of counsel for the Company and of its independent public accountants, including
the expenses of any special audits and/or “cold comfort” letters required by or incident to such performance and compliance;
(f) the reasonable fees and out-of-pocket expenses of not more than one law firm selected by the Investor
incurred by the Securityholders in connection with the registration;
(g) the costs and expenses of the Company relating to analyst and investor presentations or any “road
show” undertaken in connection with the registration and/or marketing of the Registrable Securities;
(h) all transfer agent’s and registrar’s fees; and
(i) all fees and expenses of underwriters (other than Selling Expenses) customarily paid by the issuers or
sellers of Securities and any other fees and disbursements customarily paid by the issuers of Securities.
For the avoidance of doubt, Registration
Expenses shall exclude all Selling Expenses.
“S-3 Eligible”
has the meaning set forth in Section 2.03.
“SEC” means
the U.S. Securities and Exchange Commission or any successor agency.
“Securities”
means capital stock, limited partnership interests, limited liability company interests, beneficial interests, warrants, options, notes,
bonds, debentures, and other securities, equity interests, ownership interests and similar obligations of every kind and nature of any
Person.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time
to time.
“Securityholders”
means the Investor and any Permitted Transferee that has become a party to this Agreement, in accordance with the terms hereof, by executing
or delivering a counterpart to this Agreement in the form attached hereto as Exhibit A, in each case to the extent such Person
is a holder or beneficial owner of Registrable Securities.
“Selling Expenses”
means all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities.
“Subsidiary”
means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their
terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or
indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.
Article
2
Demand and Piggyback Rights
Section 2.01.
Right to Demand a Non-Shelf Registered Offering; Demand Rights.
(a)
At any time and from time to time on or after the date that is 30 days prior to the expiration of the Lock Up Period, upon the
written demand of the Investor (a “Demand Notice”), the Company will facilitate in the manner described in this Agreement
up to eight demand registrations in the aggregate whether on Form S-1 or a successor long-form for registration under the Securities Act
(any such form, a “Form S-1”) or an underwritten registered offering on Form S-3 or a successor short-form for registration
under the Securities Act (any such form, a “Form S-3”); provided that (A) the Investor shall not be entitled to any
demand registrations on Form S-1 so long as the Company is eligible to use Form S-3 and has actually filed a Form S-3 pursuant to Section
2.03 and caused such Form S-3 to become effective, (B) the market value, based on the closing price of the Company’s Common Stock
on the Business Day immediately preceding the date of the Demand Notice, of the aggregate amount of Registrable Securities that are requested
in such Demand Notice to be included in such registered offering is at least $50,000,000 and (C) in no event shall the Investor be entitled
to submit more than (x) three Demand Notices in each calendar year and (y) one Demand Notice every 120 days.
(b)
Any demanded non-shelf registered offering may, at the Company’s option, include Equity Securities to be sold by the Company
for its own account and will also include Registrable Securities to be sold by Securityholders that exercise their related piggyback rights
pursuant to Section 2.02 hereof and any other Registrable
Securities to be sold by the holders of registration rights granted other than pursuant to this Agreement exercising such rights, in each
case, to the extent exercising such rights on a timely basis. In order to be valid, the Demand Notice must provide the information
described in Section 3.01 hereof (if applicable) and Section
4.04 hereof or be followed by such information, when requested as contemplated by Section
4.04 hereof.
(c)
Without limiting any other obligations of the Company hereunder, as soon as reasonably practicable, but in no event later than
30 days after receiving a valid Demand Notice for a non-shelf registered offering satisfying the criteria set forth in Section
2.01 hereof, the Company shall file with the SEC a registration statement covering all of the Registrable Securities covered by such Demand
Notice as well as any other Registrable Securities as to which registration is properly requested in accordance with Section
2.02 hereof (which other Registrable Securities may be included by means of a pre-effective amendment) and any other registrable securities
properly requested in accordance with other registration rights agreements with the Company, but subject in each case to any cutbacks
imposed in accordance with Section 3.05 hereof and the limitations
set forth in Section 2.05 hereof. The Company will facilitate
in the manner described in this Agreement any such non-shelf registered offering.
Section 2.02.
Right to Piggyback on a Non-Shelf Registered Offering.
(a)
If the Company proposes to register the offer or sale of any of its Common Stock under the Securities Act either for the Company’s
own account or any of its stockholders (other than pursuant to registrations on Form S-4 or Form S-8 (or other similar successor forms
then in effect under the Securities Act), if such registered primary offerings are registrations (i) relating solely to employee benefit
plans, (ii) pursuant to which the Company is offering Equity Securities solely to then-existing stockholders of the Company, (iii) relating
solely to dividend reinvestment or similar plans, (iv) pursuant to which the Company intends to exchange its own Securities for other
Securities, (v) on any registration form which does not permit secondary sales or which does not include substantially the same information
as would be required to be included in a registration statement for the Registrable Securities or (vi) a registration where the Registrable
Securities are not being sold for cash) (each such registration not withdrawn or abandoned prior to the effective date thereof being herein
called a “Piggyback Registration”), the Company will give written notice to the Securityholders of such proposal not
later than the 10th day prior to the anticipated filing date of such Piggyback Registration and each Securityholder may exercise piggyback
rights to have included in such offering Registrable Securities held by it, subject in each case to any cutbacks imposed in accordance
with Section 3.05 hereof and the limitations set forth in
Section 2.05 hereof.
Section 2.03.
Right to Demand and be Included in a Shelf Registration. On or after the date that is 30 days prior to the expiration
of the Lock Up Period, as soon as reasonably practicable, but in no event later than 30 days after receiving a valid Demand Notice satisfying
the criteria set forth in Section 2.01 hereof,
the Company will (a) prepare and file with the United States Securities and Exchange Commission a shelf registration for the Registrable
Securities on (i) Form S-3, if the Company is then eligible to file a registration statement on Form S-3 (“S-3 Eligible”),
or (ii) if the Company is not then S-3 Eligible, any other appropriate form under the Securities Act for the type of offering contemplated
by such Securityholder or (b) use an existing Form S-3 filed with the SEC, in each case providing for an offering to be made on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto, which in each case of (a) and (b) covers
all Registrable Securities then outstanding held by the Securityholders for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act or any successor rule thereto. If
at the time of such request the Company is then permitted to do so pursuant to applicable law, such shelf registration shall, upon the
approval of the board of directors of the Company, cover an unspecified number of Registrable Securities to be sold thereunder. If permitted
under the Securities Act, such Form S-3 shall be an “automatic shelf registration statement” as defined in Rule 405 under
the Securities Act.
Section 2.04.
Demand and Piggyback Rights for Shelf Takedowns. Upon receiving a valid Demand Notice satisfying the criteria
set forth in Section 2.01 hereof, the
Company will facilitate in the manner described in this Agreement a “takedown” of Registrable Securities off of an
effective shelf registration statement. In connection with any underwritten shelf takedown (whether pursuant to the exercise
of demand rights by the Investor or at the initiative of the Company), the Securityholders may exercise piggyback rights to have included
in such takedown Registrable Securities held by them that are registered on such shelf. Notwithstanding anything to the contrary in this
Agreement, in no event shall the Investor be entitled to request more than (x) three takedowns in each calendar year and (y) one takedown
every 120 days.
Section 2.05.
Limitations on Demand and Piggyback Rights.
(a)
If a demand has been made for a non-shelf registered offering or for an underwritten takedown, no further demands may be made so
long as the related offering is still being pursued.
(b)
Upon prior written notice to the Securityholders, the Company may postpone the filing of a demanded registration statement or suspend
the initial effectiveness or continued use of any shelf registration statement for a reasonable “blackout period” not
in excess of 60 days on any one occasion if the Company determines in good faith that such registration or offering would reasonably be
expected to (i) materially and adversely interfere with a bona fide business, acquisition or divestiture or financing transaction of the
Company that, if consummated, would be material to the Company or (ii) require premature disclosure of the information, the disclosure
of which could materially and adversely affect the Company and that the Company would not otherwise be required to disclose at such time;
provided that the Company shall not be entitled to impose a blackout period more than twice in any 12-month period; provided
further, that in the event there are two blackout periods in any 12-month period, such blackout periods may not occur consecutively.
If the Company imposes a blackout period with respect to a demanded registration or an underwritten registered offering, the Investor
shall be entitled to withdraw the applicable Demand Notice and, if it does so, such demand shall not count against the limitation on the
number of demand registrations set forth in Section 2.01(a).
Article
3
Notices, Cutbacks and Other Matters
Section 3.01.
Notifications Regarding Registration Statements. In order for the Investor to exercise its right to demand that
a registration statement be filed, it must include in its Demand Notice the number of Registrable Securities sought to be registered and
the proposed plan of distribution.
Section 3.02.
Notifications Regarding Registration Piggyback Rights.
(a)
In the event that the Company receives (i) any demand from the Investor pursuant to Section
2.01 hereof, or (ii) if the Company files a registration statement with respect to a non-shelf registered offering, the Company will promptly
give to each Securityholder a written notice thereof no later than 5:00 p.m., New York City time on the fifth Business Day following receipt
by the Company of such demand or the filing of such registration statement, as applicable. If a Securityholder wishes to exercise
its piggyback rights with respect to any such non-shelf registration statement, the Securityholder must notify the Company and the other
Securityholders of the number of Registrable Securities it seeks to have included in such registration statement in a written notice. Such
notice must be given as soon as practicable, but in no event later than 5:00 p.m. New York City time on the second Business Day prior
to (A) if applicable, the date on which the preliminary prospectus intended to be used in connection with pre-effective marketing efforts
for the relevant offering is expected to be finalized, and (B) in any case, the date on which the pricing of the relevant offering is
expected to occur. No such notice is required in connection with a shelf registration statement, to the extent that Registrable
Securities held by all Securityholders have been included up to the applicable percentage in such shelf registration statement.
(b)
Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain appropriate confidentiality
of their discussions regarding a prospective non-shelf registration.
Section 3.03.
Notifications Regarding Demanded Underwritten Takedowns.
(a)
The Company will keep the Securityholders reasonably apprised of all pertinent aspects of any underwritten shelf takedown in order
that the Securityholders may have a reasonable opportunity to exercise their related piggyback rights. Without limiting the Company’s
obligation as described in the preceding sentence, having a reasonable opportunity requires that the Securityholders be notified by the
Company of an anticipated underwritten takedown no later than 5:00 p.m. New York City time, on (i) if
applicable, the second Business Day prior to the date on which the preliminary prospectus or prospectus supplement intended to be used
in connection with pre-pricing marketing efforts for such takedown is finalized, and (ii)
in all cases, the second Business Day prior to the date on which the pricing of the relevant takedown occurs.
(b)
If a Securityholder wishes to exercise its piggyback rights with respect to an underwritten shelf takedown, it must notify the
Company and the other Securityholders of the number of Registrable Securities it seeks to have included in such takedown. Such notice
must be given as soon as practicable, but in no event later than 5:00 p.m., New York City time, on (i)
if applicable, the Business Day prior to the date on which the preliminary prospectus or prospectus supplement intended to be used in
connection with marketing efforts for the relevant offering is expected to be finalized, and (ii)
in all cases, the Business Day prior to the date on which the pricing of the relevant takedown occurs.
(c)
Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain appropriate confidentiality
of their discussions regarding a prospective underwritten takedown.
Section 3.04.
Plan of Distribution, Underwriters, Advisors and Counsel. If a majority of the Registrable Securities proposed to be sold
in an underwritten offering through a non-shelf registration statement or through a shelf takedown is being sold by the Company for its
own account, the Company will be entitled to determine the plan of distribution and select the managing underwriters and any provider
of advisory services, for such offering. Otherwise, (a) the Investor, if participating in such offering or (b) Securityholders holding
a majority of the Registrable Securities requested to be included if the Investor is not participating in such offering, will be entitled
to determine the plan of distribution and select the managing underwriters and any provider of advisory services; provided that such investment
banker or bankers, managers and providers of advisory services shall be reasonably satisfactory to the Company. The Investor, if participating
in such offering, or Securityholders holding the majority of Registrable Securities requested to be included, if the Investor is not participating
in such offering, will also be entitled to select counsel for the Securityholders (which may be the same as counsel for the Company).
Section 3.05.
Cutbacks. If the managing underwriters advise the Company and the Securityholders participating in such offering
that, in their opinion, the number of Registrable Securities requested to be included in an underwritten offering exceeds the amount that
can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, the price that
will be paid in such offering or the marketability thereof, such offering will include only the number of Registrable Securities that
the underwriters advise can be sold in such offering. If an offering is an underwritten registration and the underwriter(s)
give notice that the Registrable Securities proposed to be included therein will be subject to cutback, then securities will be included
in the following order of priority: (a) Common Stock proposed to be included in such registration by the Company for its own account,
or Registrable Securities for the account of such holder for whom or for which the registration was originally being effected pursuant
to demand or other registration rights, as applicable (subject to pro rata cutback as set out in clause (b)), and (b) any excess up to
the cutback will be allocated among other participating holders pro rata to their respective Registrable Securities proposed to be included
in the offering.
Section 3.06.
Withdrawals. Even if Registrable Securities held by the Securityholder have been part of a registered underwritten
offering, the Securityholder may, no later than the time at which the public offering price and underwriters’ discount are determined
with the managing underwriter, decline to sell all or any portion of the Registrable Securities being offered for its account. If
declined and the Company does not effect a primary offering of securities pursuant to such registered underwritten offering, the demand,
if any, made by the Securityholder pursuant to Section 2.01 for such registered underwritten offering shall still constitute a demand
for purposes of Section 2.01, unless the Securityholder reimburses the Company for all Registration Expenses with respect to such registered
underwritten offering.
Section 3.07.
Lockups. In connection with any underwritten offering of Equity Securities, the Company and each Securityholder
will agree (in the case of Securityholders, with respect to Registrable Securities respectively held by them) to be bound by the underwriting
agreement’s lockup restrictions (which must apply in like manner to all of them) that are agreed to by the Company. In addition,
the Securityholders shall be bound by their obligations with respect to any restrictions on transfer of Registrable Securities set forth
in the Investor Agreement.
Article
4
Facilitating Registrations and Offerings
Section 4.01.
Registration Statements. In connection with each registration of Registrable Securities that is demanded by the
Investor in accordance with this Agreement or as to which piggyback rights otherwise apply, the Company will use all reasonable efforts
to facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method of disposition
thereof as promptly as practicable and, pursuant thereto, the Company shall promptly and as applicable:
(a)
Subject to Section 2.05 and in consultation with
the Investor, (i) prepare and file with the SEC a registration statement on an appropriate form covering the applicable Registrable Securities,
(ii) file amendments thereto as warranted, (iii) seek the effectiveness thereof, and (iv) file with the SEC prospectuses and prospectus
supplements as may be required, and as reasonably necessary in order to permit the offer and sale of the such Registrable Securities in
accordance with the applicable plan of distribution;
(b)
Subject to Section 2.05, with respect to any shelf
registration statement filed pursuant to Section 2.03, keep
such shelf registration statement continuously effective and in compliance with the Securities Act and useable for the resale of Registrable
Securities until such time as there are no Registrable Securities remaining, including by filing successive replacement or renewal shelf
registration statements upon the expiration of such shelf registration statement;
(c)
within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement,
amendment or supplement to a prospectus or any free writing prospectus (in each case including all exhibits filed therewith), but excluding
any Exchange Act reports, provide copies of such documents to the Securityholders participating in the offering and to the underwriter
or underwriters of an underwritten offering, if applicable, and to their respective counsel, and consider in good faith such reasonable
changes in any such documents prior to or after the filings thereof as the counsel to the Securityholders participating in the offering
or the underwriter or underwriters may reasonably request.
(d)
subject to Section 2.05, cause each registration statement and the related prospectus and any amendment or supplement thereto,
as of the effective date of such registration statement, amendment or supplement and during the distribution of the registered Registrable
Securities (i) to comply in all material respects with the requirements of the Securities Act (including the rules and regulations promulgated
thereunder) and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(e)
notify the Securityholders promptly (i) when a registration statement has
become effective and when any post-effective amendments and supplements thereto become effective if such registration statement or post-effective
amendment is not automatically effective upon filing pursuant to Rule 462 under the Securities Act, and (ii) of
the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness
of a registration statement or the initiation of any proceedings for that purpose;
(f)
furnish counsel for each underwriter, if any, and for the Securityholders copies of any correspondence with the SEC or any state
securities authority relating to the registration statement or prospectus (except for a “no review” letter);
(g)
make available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar provision then in force); and
(h)
obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible time.
Section 4.02.
Non-Shelf Registered Offerings and Shelf Takedowns. In connection with any non-shelf registered offering or shelf
takedown that is demanded by Securityholders or as to which piggyback rights otherwise apply, the Company will:
(a)
cooperate with the Securityholders participating in the offering and the sole underwriter or managing underwriter of an underwritten
offering, if any, to facilitate the timely preparation and delivery of certificates (or book-entries to similar effect) representing the
Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the governing documents thereof) and registered in such names as the Securityholders participating
in the offering or the sole underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, may reasonably
request at least five days prior to any sale of such Registrable Securities;
(b)
furnish to each Securityholder and to each underwriter, if any, participating in the relevant offering, without charge, as many
copies of the applicable prospectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents
as such Securityholder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable
Securities; the Company hereby consents to the use of the prospectus, including each preliminary prospectus, by each such Securityholder and underwriter in connection
with the offering and sale of the Registrable Securities covered by the prospectus or the preliminary prospectus;
(c)
(i) use all reasonable efforts to register or qualify the Registrable Securities being offered and sold, no later than the time
the applicable registration statement becomes effective, under all applicable state securities or blue sky laws of such jurisdictions
as each underwriter, if any, or any Securityholder participating in the offering, shall reasonably request; (ii) use all reasonable
efforts to keep each such registration or qualification effective during the period such registration statement is required to be kept
effective; and (iii) do any and all other acts and things which may be required to enable each such underwriter, if any, and Securityholder
to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Securityholder; provided,
however, that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to consent to be subject to general service of process (other than service of process in connection
with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction;
(d)
use all reasonable efforts to cause all Registrable Securities being sold to be qualified for inclusion in or listed on the New
York Stock Exchange (or Nasdaq, if the Registrable Securities are then so qualified or listed on such exchange) if so requested by the
Securityholders, or if so requested by the underwriter or underwriters of an underwritten offering of Registrable Securities, if any;
(e)
cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by
any underwriter in an underwritten offering;
(f)
facilitate the distribution and sale of any Registrable Securities to be offered pursuant to this Agreement, including without
limitation by making “road show” presentations, holding meetings with and making calls to potential investors and taking
such other actions as shall be reasonably requested by the lead managing underwriter of an underwritten offering; and
(g)
enter into customary agreements (including, in the case of an underwritten offering, underwriting agreements in customary form,
and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating
to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in connection therewith:
(i)
make such representations and warranties to the underwriters, if any, in form, substance and scope as are customarily made by issuers
to underwriters in similar underwritten offerings;
(ii)
obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the lead managing underwriter, if any) addressed to the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten offerings
and such other matters as may be reasonably requested by such underwriters;
(iii)
obtain “cold comfort” letters and updates thereof from the Company’s independent certified public accountants
addressed to the underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered
in “cold comfort” letters to underwriters in connection with primary underwritten offerings; and
(iv)
to the extent requested and customary for the relevant transaction, enter into a Securities sales agreement with the Securityholders
providing for, among other things, the appointment of such representative as agent for the selling Securityholders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall be customary in form, substance and scope and shall contain customary
representations, warranties and covenants; and
The above shall be done at
such times as customarily occur in similar registered offerings or shelf takedowns.
Section 4.03.
Due Diligence. In connection with each registration and offering of Registrable Securities to be sold by Securityholders,
the Company will, in accordance with customary practice, make available for inspection by representatives of the underwriters and any
counsel or accountant retained by such underwriters, in each case, during normal business hours, on reasonable advance notice and without
undue burden or hardship on the Company, all reasonably necessary financial and other records, pertinent corporate documents and properties
of the Company and cause appropriate officers, managers, employees, outside counsel and accountants of the Company to supply all information
reasonably requested by any such representative, underwriter, counsel or accountant in connection with their due diligence exercise, but
subject to customary privilege constraints.
Section 4.04.
Information from Securityholders. Each Securityholder that holds Registrable Securities covered by any registration
statement will furnish to the Company such information regarding itself as is required to be included in the registration statement or
is otherwise required by FINRA or the SEC in connection with such registration statement, the ownership of Registrable Securities by such
Securityholder and the proposed distribution by such Securityholder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
Section 4.05.
Expenses. All Registration Expenses incurred in connection with any registration statement or registered offering
covering Registrable Securities held by the Securityholders will be borne by the Company. However, Selling Expenses applicable
to Registrable Securities sold for the account of a Securityholder will be borne by such Securityholder.
Article
5
Indemnification
Section 5.01.
Indemnification by the Company. In the event of any registration under the Securities Act by any registration
statement pursuant to rights granted in this Agreement of Registrable Securities held by Securityholders, the Company will indemnify and
hold harmless each of the Securityholders, their respective officers, directors, agents and representatives, each underwriter of such
securities and each other Person, if any, who is or might be deemed to be a “controlling person” of any Securityholder or
such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Control Person”)
and each other Person, if any, who act on behalf or controls any such Securityholder, underwriter or Control Person (each, a “Covered
Person”), against any losses, claims, damages, or liabilities (including reasonable and documented legal fees and costs of court),
joint or several, to which such Covered Person may become subject under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, any legal or other expenses reasonably incurred by them in connection with investigating
any claims and defending any actions, insofar as such losses, claims, damages, or liabilities (or any actions in respect thereof) arise
out of or are based upon any violation or alleged violation by the Company of the Securities Act, any blue sky laws, securities laws or
other applicable laws of any state or country in which such securities are offered and relating to action taken or action or inaction
required of the Company in connection with such offering, or arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact (a) contained, on its effective date, in any registration statement under which such securities were registered under
the Securities Act or any amendment or supplement to any of the foregoing, or which arise out of or are based upon the omission or alleged
omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (b) contained
in any preliminary prospectus, if used prior to the effective date of such registration statement, or in the final prospectus (as amended
or supplemented if the Company shall have filed with the SEC any amendment or supplement to the final prospectus), or which arise out
of or are based upon the omission or alleged omission to state a material fact required to be stated in such prospectus or necessary to
make the statements in such prospectus not misleading; and will reimburse each such Covered Person, as and when incurred, for any legal
or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, or liability;
provided, however, that the Company shall not be liable to any Covered Person in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or such amendment or supplement, in reliance upon and in conformity with information furnished
to the Company through a written instrument duly executed by the Securityholder specifically for use in the preparation thereof.
Section 5.02.
Indemnification by Securityholders. Each Securityholder as a condition to including Registrable Securities in
such registration statement will indemnify and hold harmless (in the same manner and to the same extent as set forth in Section
5.01 hereof) the Company, each director of the Company, each officer of the Company who shall sign the registration statement, and any
Person who is or might be deemed a Controlling Person of the Company and each underwriter of such Securities and their respective Covered
Persons, (a) with respect to any statement or omission from such registration statement, or any amendment or supplement to it, if such
statement or omission was made in reliance upon and in conformity with information furnished to the Company through a written instrument
duly executed by such Securityholder specifically regarding such Securityholder for use in the preparation of such registration statement
or amendment or supplement, and (b) with respect to compliance by such Securityholder with applicable laws in effecting the sale or other
disposition of the securities covered by such registration statement.
Section 5.03.
Indemnification Procedures. Promptly after receipt by an indemnified party of notice of the commencement of any
action involving a claim referred to in Section
5.01 and Section 5.02 hereof, the indemnified
party will, if a claim in respect thereof is to be made or may be made against an indemnifying party, give written notice to such indemnifying
party of the commencement of the action. The failure of any indemnified party to give notice shall not relieve the indemnifying
party of its obligations in this Article
5, except to the extent that the indemnifying party is actually prejudiced by the failure to give notice. If any such action
is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense of the action
with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to such indemnified party
of its election to assume defense of the action, the indemnifying party will not be liable to such indemnified party for any legal or
other expenses incurred by the latter in connection with the action’s defense other than reasonable costs of investigation. An
indemnified party shall have the right to employ separate counsel in any action or proceeding and participate in the defense thereof,
but the fees and expenses of such counsel shall be at such indemnified party’s expense unless (a) the employment of such counsel
has been specifically authorized in writing by the indemnifying party, (b) the indemnifying party has not assumed the defense and employed
counsel reasonably satisfactory to the indemnified party within thirty (30) days after notice of any such action or proceeding, or (c) the
named parties to any such action or proceeding (including any impleaded parties) include the indemnified party and the indemnifying party
and the indemnified party shall have been advised by such counsel that representation by such counsel of the indemnified party and the
indemnifying party would be inappropriate due to actual or potential differing interests between such persons in such proceeding (in which
case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of the indemnified party),
it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable
and documented fees and expenses of more than one separate firm of attorneys (in addition to all local counsel which is necessary, in
the good faith opinion of both counsel for the indemnifying party and counsel for the indemnified party in order to adequately represent
the indemnified parties) for the indemnified party and that all such fees
and expenses shall be reimbursed as they are incurred upon written request and presentation of invoices. Whether or not a defense
is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its
consent (not to be unreasonably withheld). No indemnifying party will consent to entry of any judgment or enter into any settlement
which (i) does not include as an unconditional term the giving by the claimant or plaintiff, to the indemnified party, of a release from
all liability in respect of such claim or litigation or (ii) involves the imposition of equitable remedies or the imposition of any non-financial
obligations on the indemnified party.
Section 5.04.
Contribution. If the indemnification required by this Article
5 from the indemnifying party is unavailable to or insufficient to hold harmless an indemnified party in respect of any indemnifiable
losses, claims, damages, liabilities, or expenses, then the indemnifying party shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages, liabilities, or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnified and indemnifying parties, in connection with the actions which resulted in such losses, claims, damages, liabilities,
or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or parties or by the indemnified party, whether the violation or alleged violation of the Securities
Act, blue sky laws, securities laws or other applicable laws of any state or country in which such securities are offered and relating
to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying
party or the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the losses, claims, damage, liabilities, and expenses
referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. The Company and the Securityholders agree that it would not be just and equitable if contribution
pursuant to this Section 5.04 were determined
by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in
the prior provisions of this Section 5.04.
Notwithstanding the provisions
of this Section 5.04, no Securityholder shall be required to contribute
any amount in excess of the net proceeds (after deducting Selling Expenses) actually received by such Securityholder in the sale of Registrable
Securities that gives rise to obligation to contribute. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such a fraudulent misrepresentation.
Article
6
Other Agreements
Section 6.01.
Assignment. Neither the Company nor any Securityholder shall assign all or any part of this Agreement without
the prior written consent of the Company and the Investor. Notwithstanding the foregoing, without the prior written consent of the Company,
the Investor may assign its rights and obligations under this Agreement in whole or in part to any Person who is a Permitted Transferee
of the Investor pursuant to the Investor Agreement; provided that any Person who becomes a holder of Registrable Securities upon
a transfer by the Investor of Registrable Securities becomes a party hereto by executing and delivering a counterpart to this Agreement
in the form attached hereto as Exhibit A. Except as otherwise provided
herein, this Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted
assigns.
Section 6.02.
Rule 144. If the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, the
Company covenants that it will file any reports required to be filed by it under the Securities Act and the Exchange Act (or, if the
Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act but is not required to file such reports, it will,
upon the request of any Securityholder, make publicly available such information) and it will take such further action as any Securityholder
may reasonably request, so as to enable such Securityholder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or (b) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of any Securityholder, the Company will deliver to such
Securityholder a written statement as to whether it has complied with such requirements. For the avoidance of doubt, this Section
6.02 shall not in any way limit or otherwise modify any applicable restrictions on transfer set forth in the Investor Agreement.
Article
7
Miscellaneous
Section 7.01.
Notices. All notices, requests, demands and other communications required or permitted hereunder shall be made
in writing by hand-delivery, registered first-class mail, electronic mail or air courier guaranteeing delivery to the Persons at the respective
addresses set forth below or pursuant to such other instructions as may be designated in writing by the party to receive such notice.
If to the Company:
FMC Corporation
2929 Walnut Street
Philadelphia, PA 19104
Attention: Sara Ponessa
E-mail: [***]
with a copy (which shall not constitute notice)
to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: William H. Aaronson; Cheryl Chan
Telephone: (212) 450-4000
E-mail: william.aaronson@davispolk.com;
cheryl.chan@davispolk.com
If to the Investor:
Tessenderlo Group NV
130 Rue du Trône
1050 Brussels
Belgium
Attention: Miguel de Potter; Anne Mie Vanwalleghem
E-mail: [***]
with a copy (which shall not constitute notice)
to:
Stibbe
25 Rule de Loxum
1000 Brussels
Belgium
Attention: Jan Peeters
Telephone: +32 2 533 52 11
Email: jan.peeters@stibbe.com
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN
United Kingdom
Attention: Nikolaos G. Andronikos; Mimi Wu; Tyler W. Hill
Telephone: +44 20 7959 8900
E-mail: andronikosn@sullcrom.com; wum@sullcrom.com;
hillty@sullcrom.com
If to any other Securityholder, to such address
as is designated by such Securityholder in the counterpart to this Agreement in the form attached hereto as Exhibit A.
Any such notice, request,
demand or other communication shall be deemed to have been duly given (a) on the date of delivery if delivered personally or by electronic
transmission (provided no error message is generated), (b) on the first Business Day after being sent if delivered by nationally recognized
overnight delivery service and (c) upon the earlier of actual receipt thereof or five Business Days after the date of deposit in the United
States mail if delivered by mail.
Section 7.02.
Section Headings. The article and section headings in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement. References in this Agreement to a designated “Article”
or “Section” refer to an Article or Section of this Agreement unless otherwise specifically indicated.
Section 7.03.
Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to conflict of laws.
Section 7.04.
Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
(a)
The parties to this Agreement hereby irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the Delaware
Chancery Court (or, if such court shall not have jurisdiction, any state court or United States Federal court sitting in the City of Wilmington
in the State of Delaware) in any action or proceeding arising out of or relating to this Agreement.
(b)
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.05.
Amendments.
(a)
This Agreement may be amended only by an instrument in writing executed by the Company and the Investor. This Agreement will terminate
as to any Securityholder when it no longer holds any Registrable Securities; provided that the provisions of Section
4.05, Article 5 and this Article
7 shall survive such termination.
(b)
In the event the Investor is no longer a party to this Agreement, references in this Agreement to the Investor shall be read to
refer to Securityholders holding a majority of the Registrable Securities.
Section 7.06.
No Inconsistent Agreements. The Company represents and warrants that as of the date hereof it has not entered,
and agrees that it will not enter, into any agreement with respect to registration rights for its Equity Securities that violates or subordinates
the rights granted to the Securityholders under this Agreement.
Section 7.07.
Entire Agreement. This Agreement, together with the Purchase Agreement and the Investor Agreement, contains the
entire understanding of the parties with respect to the subject matter hereof. The registration rights granted under this Agreement
supersede any registration, qualification or similar rights with respect to any of the Registrable Securities granted under any other
agreement, and any of such preexisting registration rights are hereby terminated.
Section 7.08.
Severability. The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate
or render unenforceable any of its other provisions. Any provision of this Agreement held invalid or unenforceable shall be
deemed reformed, if practicable, to the extent necessary to render it valid and enforceable and to the extent permitted by law and consistent
with the intent of the parties to this Agreement.
Section 7.09.
No Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
Section 7.10.
Counterparts. This Agreement may be executed in multiple counterparts, including by means of facsimile, each
of which shall be deemed an original, but all of which together shall constitute the same instrument.
Section 7.11.
Equitable Remedies. The parties hereto agree that irreparable harm would occur in the event that any of the agreements
and provisions of this Agreement were not performed fully by the parties hereto in accordance with their specific terms or conditions
or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of
ascertaining and quantifying the amount of damage that will be suffered by the parties hereto in the event that this Agreement is not
performed in accordance with its terms or conditions or is otherwise breached. It is accordingly hereby agreed that the parties
hereto shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other parties
and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, such remedy
being in addition to and not in lieu of, any other rights and remedies to which the other parties are entitled to at law or in equity.
Section 7.12.
Further Assurances. Each party to this Agreement shall cooperate and take such action as may be reasonably requested
by another party to this Agreement in order to carry out the provisions and purposes of this Agreement and the transactions contemplated
hereby.
Section 7.13.
No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective
successors and permitted assigns and Permitted Transferees and nothing herein, express or implied, is intended to or shall confer upon
any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement; provided,
however, that the parties hereto hereby acknowledge that the Persons set forth in Section
5.01 and Section 5.02 shall be express
third-party beneficiaries of the obligations of the parties hereto set forth in Section
5.01 and Section 5.02.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date first written above.
COMPANY:
FMC CORPORATION
By:
/s/ Andrew D. Sandifer
Name: Andrew D. Sandifer
Title: Executive Vice President and Chief Financial Officer
INVESTOR:
TESSENDERLO GROUP NV
By:
/s/ Luc Tack
Name: Luc Tack
Title: Chief Executive Officer
[Signature Page to Registration Rights Agreement]
Exhibit A
Form of Counterpart
By execution of this counterpart, [NAME OF TRANSFEREE]
hereby agrees to become a party to, and to be bound by the obligations of a Securityholder, and receive the benefits of a Securityholder,
under that certain Registration Rights Agreement, dated as of September 23, 2026, by and among FMC Corporation, a Delaware corporation,
Tessenderlo Group NV, a public limited company incorporated under the laws of Belgium and the other Securityholders (as defined therein)
who become parties thereto from time to time.
[NAME OF TRANSFEREE]
By:
Name:
Title:
Address for Notices:
[●]
Attention:
[●]
Phone:
[●]
Facsimile:
[●]
E-Mail:
[●]
with a copy (which shall not constitute
notice) to:
[●]
Attention:
[●]
Phone:
[●]
Facsimile:
[●]
E-Mail:
[●]
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: dp253498_ex9901.htm · Sequence: 4
Exhibit 99.1
FOR IMMEDIATE RELEASE
FMC Corporation and Tessenderlo Group
Complete Minority Equity Investment
NEWS
PROVIDED BY
FMC
Corporation →
Sept.
23, 2026, 04:30 PM ET
PHILADELPHIA, Sept. 23, 2026 /PRNewswire/ - FMC Corporation
(NYSE: FMC), a leading global agricultural sciences company, and Tessenderlo Group (XBRU: TESB), a Belgian-based industrial group, today
announced the closing of a minority equity investment by Tessenderlo Group in FMC. The companies entered into a definitive agreement on
June 30, 2026, and have satisfied all required closing conditions and regulatory approvals.
Under the terms of the transaction, Tessenderlo Group purchased 30,319,166
shares of FMC common stock at a price of $13.30 per share, for an aggregate purchase price of approximately $403 million. Tessenderlo
Group now owns approximately 20.0% of FMC's outstanding common stock.
As part of the investment, Tessenderlo Group has the right to nominate
one independent director to the FMC Board of Directors and has nominated Luc Tack, chief executive officer of Tessenderlo Group. Tessenderlo
Group has also agreed to customary standstill restrictions for so long as it owns FMC shares and is subject to a three-year lock-up period.
BofA Securities and Goldman Sachs & Co. LLC served as financial
advisors and Davis Polk & Wardwell LLP served as legal counsel to FMC Corporation.
Stibbe BV/SRL and Sullivan & Cromwell LLP served as legal advisors
to Tessenderlo Group NV.
About FMC
FMC Corporation is a global agricultural sciences company dedicated
to helping growers produce food, feed, fiber and fuel for an expanding world population while adapting to a changing environment. FMC's
innovative crop protection solutions – including biologicals, crop nutrition, digital and precision agriculture – enable growers
and crop advisers to address their toughest challenges economically while protecting the environment. FMC is committed to discovering
new herbicide, insecticide and fungicide active ingredients, product formulations and pioneering technologies that are consistently better
for the planet. Visit fmc.com to learn more and follow us on LinkedIn®.
About Tessenderlo Group
Tessenderlo Group is an industrial group that focuses on agriculture,
valorising bio-residuals, machinery, mechanical engineering, electronics, energy, and providing industrial solutions with a focus on
water. With its headquarters in Belgium, the group is active in over 100 countries and it has a global team of approximately 7,000 employees.
Its belief that “Every Molecule Counts” is at the heart of the strategy of the group: Tessenderlo Group continually strives
to valorise its products and processes to the maximum and to add value to everything it does. In 2025, Tessenderlo Group recorded a consolidated
revenue of 2.8 billion EUR. Tessenderlo Group is listed on Euronext Brussels and is part of the Next 150 and BEL Mid indices. Financial
News wires: Bloomberg: TESB BB - Reuters: TESB.BR - Datastream: B:Tes. For more information about Tessenderlo Group, its people, its
brands, and its results, please visit www.tessenderlo.com.
FMC Disclaimer
Statement under the Safe Harbor Provisions of the Private Securities
Litigation Reform Act of 1995: FMC and its representatives may from time to time make written or oral statements that are "forward-looking"
and provide other than historical information, including statements contained in this press release, information regarding the proposed
transaction, the ability to negotiate a leaseback agreement, any impact on FMC's research operations, and the expected timing of and proceeds
from the proposed transaction.
In some cases, FMC has identified these forward-looking statements
by such words or phrases as "outlook", "will likely result," "is confident that," "expect," "expects,"
"should," "could," "may," "will continue to," "believe," "believes," "anticipates,"
"predicts," "forecasts," "estimates," "projects," "potential," "intends" or
similar expressions identifying "forward-looking statements" within the meaning of the Private Securities Litigation Reform
Act of 1995, including the negative of those words or phrases. Such forward-looking statements are based on our current views and assumptions
regarding future events, future business conditions and the outlook for the company based on currently available information. The forward-looking
statements involve known and unknown risks, uncertainties and other factors that may cause actual results to be materially different from
any results, levels of activity, performance or achievements expressed or implied by any forward-looking statement, including risks relating
to the proposed transaction and the risk that the proposed transaction is not successfully completed. These statements are qualified by
reference to the risk factors included in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2025 (the
"2025 Form 10-K"), the section captioned "Forward-Looking Information" in Part II of the 2025 Form 10-K and to similar
risk factors and cautionary statements in all other reports and forms filed with the Securities and Exchange Commission ("SEC").
We wish to caution readers not to place undue reliance on any such forward-looking statements, which speak only as of the date made. Forward-looking
statements are qualified in their entirety by the above cautionary statement.
We specifically decline to undertake any obligation, and specifically
disclaims any duty, to publicly update or revise any forward-looking statements that have been made to reflect events or circumstances
after the date of such statements or to reflect the occurrence of anticipated or unanticipated events, except as may be required by law.
Tessenderlo Group Disclaimer
This document may contain forward-looking statements. Such statements
reflect the views of management regarding future events at the date of this document. Furthermore, they involve known and unknown risks,
uncertainties and other factors that may cause actual results to be different from any results, performance or achievements expressed
or implied by such forward-looking statements. Tessenderlo Group provides the information in this press release as at the date of publication
and, subject to applicable legislation, does not undertake any obligation to update, clarify or correct any forward-looking statements
contained in this press release in light of new information, future events or otherwise. Tessenderlo Group disclaims any liability for
statements made or published by third parties (including any employees who are not explicitly mandated by Tessenderlo Group) and, subject
to applicable legislation, does not undertake any obligation to correct inaccurate data, information, conclusions or opinions published
by third parties in relation to this or any other press release it issues.
FMC Media contact: Nicole Canning 1.215.299.5916, Nicole.Canning@fmc.com; FMC Investor contact: Curt Brooks, 1.215.299.6137, curt.brooks@fmc.com;
Tessenderlo CFO – Investor Relations: Miguel de Potter, +32 2 887 09 58, ir@tessenderlo.com; Tessenderlo VP Group Communications
& Sustainability - Media: Bjorn Theijs, Groupcommunication@tessenderlo.com
SOURCE FMC Corporation
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