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| CUSIP No. 96328L 205 |
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13D |
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Page
4
of 7 Pages |
Investment and Investor Rights Agreement
On the Closing Date, the Reporting Person entered into an Investment and Investor Rights Agreement (the “Investor Rights
Agreement”) with the Issuer, CK Wheels and Delta (each of the Reporting Person, CK Wheels and Delta, an “Investor” and together, the “Investors”). On the Closing Date, the Issuer issued to the Reporting
Person 20,187,667 shares of Class A Common Stock as consideration for the transactions contemplated by the Credit Agreement, which, when combined with issuances of Class A Common Stock to the other Investors, in the aggregate represents
80% of the pro forma fully diluted capital stock of the Issuer as of the Closing Date. Under the terms of the Investor Rights Agreement, the Issuer is required to use its best efforts to amend the Issuer’s Certificate of
Incorporation, as amended, and the Amended and Restated Bylaws of the Issuer (together, the “Issuer Charter Documents”) as promptly as reasonably practicable following the Closing Date (and in any event, by no later than
December 31, 2023) to provide for an increase in the authorized Class A Common Stock in accordance with the terms of the Investor Rights Agreement, and to file with the Securities and Exchange Commission a proxy statement relating to the
matters to be submitted to the stockholders of the Issuer at a meeting of such holders for the purpose of adopting such amendment to the Issuer Charter Documents (such approval, the “Requisite Shareholder Approval”). Following the
Requisite Shareholder Approval, the Issuer shall issue to the Investors and any additional investors that may join the Investor Rights Agreement pursuant to its terms in a separate issuance an additional 529,926,270 shares of Class A Common
Stock (the date of such issuance, the “Deferred Closing Date”), which, when combined with the issuance as of the Closing Date represents 95% of the pro forma fully diluted capital stock of the Issuer as of the
Closing Date, subject to dilution from future awards issued under management incentive plans approved by the Board of Directors of the Issuer (the “Board”), and subject to the terms and conditions of the Investor Rights Agreement.
The shares of Class A Common Stock issued to the Investors at the Closing Date will vote to obtain the Requisite Shareholder Approval.
Pursuant to the terms of the Investor Rights Agreement, the Issuer and each Investor will use its best efforts to cause the Board to be
comprised of twelve directors as follows: (i) four designees of Delta, (ii) four designees of CK Wheels, (iii) one designee of the Reporting Person, (iv) the chief executive officer of the Issuer, and (v) David Adelman and
Timothy Armstrong. Each Investor’s ongoing right to designate their respective designees to the Board is subject to ownership thresholds as set forth in further detail in the Investor Rights Agreement.
Pursuant to the Investor Rights Agreement, each Investor has agreed with the Issuer to certain transfer restrictions, as well as agreed to a
right of first offer, tag-along rights and drag-along rights, in each case, under the terms and subject to the conditions set forth in the Investor Rights Agreement. Additionally, so long as Delta is entitled
to designate at least one director, and so long as CK Wheels is entitled to designate at least one director, in each case, pursuant to the terms of the Investor Rights Agreement, the prior written consent of Delta and CK Wheels, acting
independently, is required prior to the Issuer or the Board causing or permitting any subsidiary of the Issuer to take certain actions, as described in further detail in the Investor Rights Agreement.
The foregoing description of the Investor Rights Agreement does not purport to be complete and is qualified in its entirety by reference to
the Investor Rights Agreement filed as Exhibit 2 to this Schedule 13D, which is incorporated by reference herein.
Registration
Rights Agreement
On the Closing Date, the Issuer entered into a Registration Rights Agreement (the “Registration Rights
Agreement”) with the Reporting Person and the other Investors. The Registration Rights Agreement provides for customary registration rights with respect to the Class A Common Stock issued to Investors pursuant to the Investor Rights
Agreement and certain other equity securities of the Issuer held by Investors. The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the Registration Rights
Agreement filed as Exhibit 3 to this Schedule 13D, which is incorporated by reference herein.
Item 5. Interest in Securities of the Issuer.
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(a) |
The information relating to the beneficial ownership of the Class A Common Stock by the Reporting Person
set forth in Rows 7 through 13 of the cover pages hereto is incorporated by reference herein. As of the date of this Schedule 13D, the Reporting Person beneficially owns an aggregate of 20,187,667 shares of Class A Common Stock, which excludes
shares Class A Common Stock to be issued by the Issuer on the Deferred Closing Date. |
Calculations of beneficial
ownership described herein are based on information provided by the Issuer in its Current Report on Form 8-K filed September 21, 2023 reflecting 166,804,525 Class A Common Stock outstanding and
exclude the shares of Class A Common Stock to be issued by the Issuer on the Deferred Closing Date.
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(b) |
To the Reporting Person’s knowledge, none of the Covered Persons directly owns any shares of the
Class A Common Stock; however, because each Covered Person is a director or executive officer of the Reporting Person, each Covered Person may be deemed to be the beneficial owner of the Class A Common Stock beneficially owned by the
Reporting Person. The Covered Persons disclaim any beneficial ownership of the shares of Class A Common Stock held by the Reporting Person. None of the Covered Persons shares voting or dispositive power over any shares of Class A Common
Stock held by the Reporting Person. |
