8-K
KELLY SERVICES INC (KELYA)
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): January 27, 2026
KELLY SERVICES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-43052 | 38-1510762 |
|---|---|---|
| (State or other jurisdiction<br> <br>of incorporation) | (Commission<br> <br>File Number) | (IRS Employer<br> <br>Identification No.) |
999 West Big Beaver Road
Troy, Michigan 48084
(Address of principal executive offices)
(248) 362-4444
(Registrant’s telephone number, including area code)
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<br>Symbol | Name of each exchange<br> <br>on which registered |
|---|---|---|
| Class A Common Stock, $1.00 par value per share | KELYA | The Nasdaq Stock Market LLC |
| Class B Common Stock, $1.00 par value per share | KELYB | The Nasdaq Stock Market LLC |
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. |
|---|
Letter Agreement with Hunt Equity Opportunities, LLC
On January 30, 2026, Kelly Services, Inc. (the “Company”) entered into a letter agreement (the “Agreement”) with Hunt Equity Opportunities, LLC (“Hunt”). The Agreement acknowledges the Share Purchase Agreement, dated January 9, 2026, between the Terence E. Adderley Revocable Trust K and Hunt (the “Purchase Agreement”) and the Company’s Stockholder Rights Plan, dated January 11, 2026 (the “Rights Plan”).
Under the Agreement, the Company agreed to take all actions within its power, including through the adoption of appropriate resolutions by the board of directors of the Company (the “
Board
”), waivers, approvals, exemptions, redemptions, exchanges and/or amendments to the Rights Plan, to cause all outstanding rights to expire and cease to be exercisable by amending the Expiration Time under Section 7(a) of the Rights Plan to be immediately prior to the closing of the transactions contemplated by the Purchase Agreement (the “
Closing
”), and to ensure that the Rights Plan is inapplicable to and not triggered by the Closing or any subsequent purchases of the Company’s equity securities by Hunt or its Affiliates (as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) made in accordance with the Agreement, such that solely by virtue of the foregoing Hunt (together with its Affiliates) will not be deemed an “Acquiring Person,” no “Stock Acquisition Date” will occur, and no “Distribution Time” will arise under the Rights Plan.
The Agreement includes certain conduct and approval covenants. From the date of the Agreement through the one-year anniversary of the Closing, Hunt agrees not to, and to cause its Affiliates and Associates (as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) and to direct their respective representatives acting on their behalf not to, directly or indirectly initiate or consummate any going-private transaction without the prior written invitation of a majority of the disinterested directors (as defined in Section 144 of the General Corporation Law of the State of Delaware (“
DGCL 144
”)) or a committee of at least two disinterested directors, unless such transaction has been proposed by an unaffiliated third party without any solicitation or invitation by Hunt, any of its Affiliates, Associates or any of their respective representatives. From the date of the Agreement through the three-year anniversary of the Closing, Hunt agrees not to, and to cause its Affiliates not to, engage in or effect any controlling stockholder transaction (as defined in DGCL 144) unless such transaction is approved in the manner described in DGCL 144(b)(1) or (b)(2) (for controlling stockholder transactions other than a going-private transaction (as defined in DGCL 144)), or DGCL 144(c)(1) (for a going-private transaction), in each case with “disinterested stockholders” defined for purposes of the Agreement to mean the holders of the Company’s Class A common stock, par value $1.00 per share, and Class B common stock, par value $1.00 per share, voting together as a single class on a one-share/one-vote basis, excluding stockholders with a material interest (as defined in DGCL 144) in the act or transaction or a material relationship (as defined in DGCL 144) with Hunt or its Affiliates or any other person that has a material interest in the act or transaction.
Effective as of and conditioned upon the Closing, and subject to the Company and Hunt entering into a mutually agreeable confidentiality agreement (which occurred on January 30, 2026), the Board will take all actions necessary or appropriate (subject to its fiduciary duties) to appoint four Hunt-designated directors (the “Hunt Designees”) to the Board with terms expiring at the Company’s 2026 annual meeting of stockholders (including any adjournment or postponement thereof, the “2026 Annual Meeting”) and to ensure that, immediately following the Closing, the Board consists of the Hunt Designees, the Company’s Chief Executive Officer, Christopher Layden, and three directors serving on the Board as of the Agreement date (the “Kelly Directors”) who meet applicable independence and financial literacy requirements. Effective as of and conditioned upon the Closing, James Christopher Hunt will be appointed Chairman of the Board. Each Hunt Designee must complete customary vetting and onboarding and be reasonably acceptable to the Corporate Governance and Nominating Committee (the “Nominating Committee”) (subject to directors’ fiduciary duties). In addition, effective as of the Closing, the Board will appoint Hunt Designees to the Nominating Committee and to the Compensation and Talent Management Committee of the Board (the “Compensation Committee”), such that all of the members of the Nominating Committee and a majority of the members of the Compensation Committee will be Hunt Designees; the Audit Committee of the Board will consist of the Kelly Directors. Each of the Board members listed on Schedule I of the Agreement has tendered an irrevocable resignation effective immediately prior to the Closing. The Company also covenants that, from the Agreement date through the Closing, it will not nominate any person for election to the Board at the 2026 Annual Meeting. Subject to the Board’s fiduciary duties, the Company will recommend, support and solicit proxies for the election of the Hunt Designees at the 2026 Annual Meeting.
The Agreement further provides that, promptly following the Agreement date, the Company will adopt a corporate opportunities waiver in favor of Hunt and its affiliates (as defined in Section 203 of the General Corporation Law of the State of Delaware) (Annex B to the Agreement), and that, subject to the Board’s fiduciary duties, the Company will include in its proxy statement for the 2026 Annual Meeting a proposal to amend its certificate of incorporation to (i) permit stockholder action by written consent, (ii) permit the Chairman of the Board to call special meetings of the stockholders, (iii) permit the holders of at least a majority of the voting power of the Class B common stock of the Company to call special meetings of stockholders and (iv) permit stockholders to fill vacancies or newly created directorships, in the form attached as Annex C to the Agreement, with the Board recommending, supporting and soliciting proxies in favor of that amendment. Following stockholder approval at the 2026 Annual Meeting, the Board will adopt conforming bylaw amendments (including procedures for action by written consent). Also on January 30, 2026, the Company and Hunt entered into a Registration Rights Agreement as described below.
From and after the Closing and until Hunt ceases to own a majority of the Company’s voting stock, the Agreement grants Hunt certain information and access rights, including specified monthly, quarterly and annual financial reporting (subject to GAAP and timing parameters noted in the Agreement), as well as reasonable access to the Company’s appropriate finance and accounting personnel. The Agreement also includes assignment and transfer provisions (including a requirement that any non-Affiliate buyer of voting control agree to perform certain sections of the Agreement), and allowances for pledges of Company equity to unaffiliated institutional lenders in bona fide financings.
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K (excluding Annex D, which is filed as Exhibit 10.2) and is incorporated herein by reference.
Item 3.03 of this Current Report on Form 8-K is incorporated herein by reference.
Registration Rights Agreement with Hunt Equity Opportunities, LLC
On January 30, 2026, the Company and Hunt entered into a registration rights agreement (the “Registration Rights Agreement”). The Registration Rights Agreement provides Hunt with demand registration rights (including shelf registration rights) and piggyback registration rights with respect to shares of the Company’s common stock held by Hunt and certain permitted assignees. Subject to specified conditions, Hunt may request an unlimited number of demand registrations, including on Form S-3 when available, generally subject to a minimum offering size of $25 million (net of underwriting discounts and commissions), and the Company is required to file a requested registration statement as promptly as reasonably practicable and in any event within 45 days after receipt of a demand notice. The Registration Rights Agreement also permits underwritten takedowns from a shelf registration statement, including underwritten block trades or bought deals with a lower minimum size threshold of $10 million (net) and shortened notice mechanics. In addition, the Registration Rights Agreement provides customary piggyback rights in Company-initiated registered offerings, subject to customary priority and cutback provisions. The Company generally will pay registration expenses and the Registration Rights Agreement includes customary indemnification and contribution provisions. The Company may defer or suspend the effectiveness or use of a registration statement in limited circumstances for up to 90 days, subject to frequency and annual duration limits.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Revolving Credit Facility Amendment
On January 27, 2026, the Company entered into the Fourth Amendment to Third Amended and Restated Credit Agreement (the “Credit Agreement Amendment”) with the subsidiary guarantors party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent. The Credit Agreement Amendment modifies
the Company’s existing Third Amended and Restated Credit Agreement, dated as of December 5, 2019, as previously amended (the “Credit Agreement”) so that the closing of the transactions pursuant to the Purchase Agreement will not, in and of itself, constitute a Change in Control under the Credit Agreement.
Except as expressly modified by the Credit Agreement Amendment, the terms of the Credit Agreement remain unchanged and in full force and effect. The foregoing description of the Credit Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement Amendment, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Receivables Purchase Agreement Amendment
On January 27, 2026, Kelly Receivables Funding, LLC, a wholly owned bankruptcy-remote subsidiary of the Company, as seller, and the Company, as servicer, entered into First Amended and Restated Receivables Purchase Agreement Amendment No. 5 (the “RPA Amendment”) with PNC Bank, National Association, in its various capacities, including as administrator and as purchaser agent for the PNC purchaser group. The RPA Amendment modifies the existing First Amended and Restated Receivables Purchase Agreement, dated as of December 5, 2016, as previously amended (the “RPA”) so that the closing of the transactions pursuant to the Purchase Agreement will not, in and of itself, constitute a Change in Control for purposes of the RPA.
Except as expressly modified by the RPA Amendment, the terms of the RPA remain unchanged and in full force and effect. The foregoing description of the RPA Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the RPA Amendment, which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant. |
|---|
The information set forth in Item 1.01 above under the captions “Revolving Credit Facility Amendment” and “Receivables Purchase Agreement Amendment” is incorporated by reference in this Item 2.03.
| Item 3.03. | Material Modification to Rights of Security Holders. |
|---|
On January 29, 2026, the Board approved Amendment No. 1 to Stockholder Rights Plan (the “Rights Plan Amendment”), which amends the Rights Plan. The Board approved the Rights Plan Amendment upon the recommendation of a transaction committee of the Board and pursuant to Section 27 of the Rights Plan, which permits amendments by action of the Board without approval of the holders of the rights, subject to limited exceptions.
The Rights Plan Amendment provides that Hunt will not be deemed an “Acquiring Person” solely by virtue of Hunt’s performance of the Share Purchase Agreement, dated January 9, 2026, between the Terence E. Adderley Revocable Trust K (“Trust K”) and Hunt, including Hunt’s acquisition of, or right to acquire, the shares contemplated thereby or the consummation of the sale of such shares (the “Transfer”), in each case so long as the Share Purchase Agreement, as originally entered on January 9, 2026, remains in full force and effect and has not been amended, modified, revised, or otherwise altered, except for any waiver of the conditions to closing set forth in Section 1.3 of such agreement. The Rights Plan Amendment further provides that Hunt will not be deemed an Acquiring Person by virtue of any subsequent purchase of shares of the Company’s Class B common stock, par value $1.00 per share, by Hunt or its affiliates that is made in accordance with the Agreement. Each of the foregoing transactions is referred to in the Rights Plan Amendment as a “Permitted Event.”
The Rights Plan Amendment also clarifies that no person shall be deemed to be, to become, or to have Beneficial Ownership of any securities by virtue of, or as a result of, any Permitted Event. In addition, the Rights Plan Amendment confirms that no “Distribution Time,” “Flip-in Event,” or “Stock Acquisition Date” will occur or be deemed to have occurred as a result of any Permitted Event.
The Rights Plan Amendment revises the Rights Plan to confirm that the Final Expiration Time remains the close of business on January 10, 2027, and to provide that the Expiration Time will also occur immediately prior to the Transfer, but only if the Transfer shall occur. The Rights Plan Amendment further states that all other provisions of the Rights Plan remain in full force and effect and that, in the event of any conflict between the Rights Plan Amendment and the Rights Plan, the Rights Plan Amendment controls.
Finally, the Rights Plan Amendment provides that it terminates automatically and is of no further force or effect upon the earlier of January 30, 2026, if the Transfer has not occurred on or before such date, and the valid termination of the Share Purchase Agreement for any reason.
The foregoing description of the Rights Plan Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of Amendment No. 1 to Stockholder Rights Plan, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 5.01. | Changes in Control of Registrant. |
|---|
On January 30, 2026, upon consummation of the transactions contemplated by the Purchase Agreement referenced in the Agreement, Hunt acquired beneficial ownership of 3,039,940 shares of the Company’s Class B common stock, representing approximately 92.2% of the Company’s outstanding voting stock, and, as a result, there occurred a change in control of the Company within the meaning of Item 5.01 of Form 8-K. The change in control resulted from the purchase of shares from the Terence E. Adderley Revocable Trust K pursuant to the Purchase Agreement, dated January 9, 2026, as referenced in the Agreement. The aggregate purchase price paid by Hunt was $106,000,000. The Purchase Agreement also provides for an additional payment in cash equal to $15,199,700 if at any time within the 48-month period following the closing of the share sale, the Company’s market capitalization is greater than or equal to $1,200,000,000. Hunt has advised the Company that the source of funds was a combination of working capital of Hunt and borrowings under a Credit Agreement, dated as of January 30, 2026, by and between Hunt and Mizuho Capital Markets, LLC, as lender. There are no arrangements known to the Company that may at a subsequent date result in a further change in control, other than the governance and related arrangements described under Item 1.01 of this Current Report, which is incorporated herein by reference.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
|---|
Effective immediately prior to the Closing, the following directors resigned from the Company’s Board of Directors: Terrence B. Larkin, Gerald S. Adolph, George S. Corona, InaMarie F. Johnson and Peter W. Quigley. These resignations were not due to any disagreement with the Company on any matter relating to the Company’s operations, policies or practices.
Effective as of the Closing, and pursuant to the Agreement, the Board appointed four Hunt-designated directors to the Board with terms expiring at the 2026 Annual Meeting: James Christopher Hunt, James K. Hunt, Edward Escudero and Angela Brock-Kyle. Effective as of the Closing, James Christopher Hunt was appointed Chairman of the Board. In connection with these appointments, the Board determined that the Audit Committee will be comprised of the Kelly Directors (Leslie A. Murphy, Robert S. Cubbin and Amala Duggirala, the three directors serving on the Board as of the Agreement date who meet the independence and financial literacy requirements referenced in the Agreement). Effective as of the Closing, the Board will appoint James Christopher Hunt, James K. Hunt and Angela Brock-Kyle to the Nominating Committee and James Christopher Hunt, Edward Escudero and Robert S. Cubbin to the Compensation Committee as specified in the Agreement. Committee assignments of the Hunt Designees to any other committees will be determined by the Board in due course.
Each Hunt Designee completed customary director vetting and onboarding and was determined to be reasonably acceptable to the Nominating Committee, in each case subject to applicable fiduciary duties. The Hunt Designees will be eligible to receive the Company’s standard non-employee director compensation as then in effect, pro-rated for service during the fiscal year, and to enter into the Company’s standard form of director indemnification agreement.
The arrangements or understandings between Hunt and the Company pursuant to which each Hunt Designee was selected as a director are described under Item 1.01 of this Current Report. Other than the Agreement, there are no arrangements or understandings between any Hunt Designee and any other person pursuant to which such Hunt Designee was selected as a director. The Company is not aware of any transactions with any Hunt Designee that would require disclosure under Item 404(a) of Regulation S-K, other than those described in Item 1.01 of this Current Report.
| Item 7.01. | Regulation FD Disclosure. |
|---|
Reference is made to the description of “Risks Related to Our Capital Structure” within Item 1A. “Risk Factors” set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 filed with the U.S. Securities and Exchange Commission on February 13, 2025 (the “2024 Form 10-K”). In the 2024 Form 10-K, the Company reported that it voluntarily complied with the listing standards of the Nasdaq Global Market despite qualifying for the “controlled company” exemption. Those listing standards include certain requirements as to director independence as well as independence requirements relating to audit, compensation and nominating committees. After the Closing, the Company may avail itself of the “controlled company” exception. As a result, the Company may no longer have a majority of independent directors on its board. Additionally, although the Company will be required to retain an audit committee meeting Nasdaq’s listing requirements, its Compensation Committee and Nominating Committee, which are not required by Nasdaq listing standards for controlled companies, may be retained but may no longer be composed of independent directors.
On January 30, 2026, the Company issued a press release announcing certain of the matters described above. A copy of that press release is furnished as Exhibit 99.1 to this Current Report and is incorporated herein by reference.
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.
| KELLY SERVICES, INC. | ||
|---|---|---|
| Date: January 30, 2026 | By: | /s/ Vanessa Peterson Williams |
| Vanessa Peterson Williams | ||
| EVP, General Counsel and Corporate Secretary |
EX-4.1
Exhibit 4.1
Execution Version
AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS PLAN
This Amendment No. 1 to Stockholder Rights Plan (this “Amendment”) is made and entered into as of January 30, 2026 by Kelly Services, Inc., a Delaware corporation (the “Company”), and amends that certain Stockholder Rights Plan, dated as of January 11, 2026 (the “Rights Plan”), adopted by the Company. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Rights Plan.
WHEREAS, the Board of Directors of the Company (the “Board”), acting upon the recommendation of a transaction committee of the Board, has determined it is advisable and in the best interests of the Company and its stockholders unaffiliated with Trust K for the Company to enter into this Amendment;
WHEREAS, subject to limited exceptions, Section 27 of the Rights Plan provides that the Company, by action of the Board, may from time to time and in its sole and absolute discretion, amend the Rights Plan in any respect without approval of any holders of the Rights;
WHEREAS, this Amendment is permitted by Section 27 of the Rights Plan; and
WHEREAS, the Company hereby desires to amend the Rights Plan as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company hereby directs that the Rights Plan shall be amended as set forth as follows:
Section 1. Amendment to Section 1. The definition of “Acquiring Person” in Section 1 of the Rights Plan is hereby amended by adding the following text as the final paragraph of such definition:
“Notwithstanding anything to the contrary in this Plan, Hunt Equity Opportunities, LLC, a Delaware limited liability company (“Hunt”), shall not be deemed an Acquiring Person by virtue of (a) (i) Hunt’s performance of the Share Purchase Agreement, dated as of January 9, 2026, by and between the Terence E. Adderley Revocable Trust K (“Trust K”) and Hunt (the “Share Purchase Agreement”), (ii) Hunt’s acquisition of, or its right to acquire, the Beneficial Ownership of the Shares (as defined in the Share Purchase Agreement) as a result of Hunt’s performance of the Share Purchase Agreement or (iii) the consummation of the sale by Trust K to Hunt, and the purchase from Trust K by Hunt, of the Shares from Trust K by Hunt and the sale of the Shares to Hunt by Trust K in accordance with the Share Purchase Agreement (the “Transfer”) or the other transactions contemplated by the Share Purchase Agreement, in each case, provided that the Share Purchase Agreement, as originally entered into on January 9, 2026, remains in full force and effect and has not been amended, modified, revised or otherwise altered, and no term or condition thereof has been waived, except any waiver of the conditions to closing set forth in Section 1.3 of the Stock Purchase Agreement or (b) any subsequent purchase of shares of Class B Common Stock by Hunt or its Affiliates made in accordance with that certain Letter Agreement by and between the Company and Hunt, dated January 30, 2026 (the events in clauses (a), and (b) being referred to as a “Permitted Event”).”
Section 2. Amendment to Section 1. The definition of “Beneficial Owner” in Section 1 of the Rights Plan is hereby amended by adding the following as the penultimate paragraph thereto:
“Notwithstanding anything in this Section 1 or this Plan to the contrary, no Person, including, without limitation, Hunt and its Affiliates and Associates, shall be deemed to be or become a “Beneficial Owner” of, or to “Beneficially Own” or have “Beneficial Ownership” of, any securities by virtue of, or as a result of, any Permitted Event.”
Section 3. Amendment to Section 1. The definition of “Distribution Time” in Section 1 of the Rights Plan is hereby amended by adding the following sentence thereto:
“For the avoidance of doubt, and notwithstanding anything in this Plan to the contrary, the Distribution Time shall not occur or be deemed to have occurred as a result of any Permitted Event.”
Section 4. Amendment to Section 1. The definition of “Flip-in Event” in Section 1 of the Rights Plan is hereby amended by adding the following sentence thereto:
“For the avoidance of doubt, and notwithstanding anything in this Plan to the contrary, a Flip-in Event shall not occur or be deemed to have occurred as a result of any Permitted Event.”
Section 5. Amendment to Section 1. The definition of “Stock Acquisition Date” in Section 1 of the Rights Plan is hereby amended by adding the following as the last paragraph thereto:
“For the avoidance of doubt, and notwithstanding anything in this Plan to the contrary, a Stock Acquisition Date shall not occur or be deemed to have occurred as a result of any Permitted Event.”
Section 6. Amendment to Section 7(a). Section 7(a) of the Rights Plan is hereby amended and replaced in its entirety as follows:
“Subject to Section 7(e), the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including the restrictions on exercisability set forth in Section 7(c), Section 9(c), Section 11(a)(iii) and Section 23(a)) in whole or in part at any time after the Distribution Time upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Company or the Rights Agent, if any, at the offices of the Company or the Rights Agent, if any, as the case may be, designated for such purpose, accompanied by a Signature Guarantee and such other documentation as the Company or the Rights Agent, if any, as the case may be, may reasonably request together with payment of the aggregate Exercise Price with respect to the total number of Fractional Share Bundles (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earliest of (i) the Close of Business on January 10, 2027 (the “Final Expiration Time”), (ii) the time at
2
which the Rights are redeemed as provided in Section 23, (iii) the time at which such Rights are exchanged pursuant to Section 24, (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f), and (v) immediately prior to the Transfer, but only if the Transfer shall occur (the earliest of (i), (ii), (iii), (iv) and (v) being herein referred to as the “Expiration Time”).
Except for those provisions herein that expressly survive the termination of this Plan, this Plan shall terminate at such time as the Rights are terminated or no longer exercisable hereunder.”
Section 7. Remaining Terms; Controlling Agreement. All other provisions of the Rights Plan that are not expressly amended hereby shall continue in full force and effect. From and after the execution and delivery of this Amendment, any references to the Rights Plan in the Rights Plan and other agreements or instruments shall be deemed to refer to the Rights Plan as amended pursuant to this Amendment. In the event of any conflict between the terms of this Amendment and the Rights Plan, this Amendment shall control.
Section 8. Termination. Notwithstanding anything to the contrary set forth herein, this Amendment shall terminate and be of no further force or effect upon the earlier of (i) January 30, 2026 if the Transfer has not occurred on or before such date, and (ii) the valid termination of the Share Purchase Agreement for any reason.
Section 9. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
Section 10. Severability. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 11. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile or other customary means of electronic transmission (e.g., “pdf”) shall be effective as delivery of a manually executed counterpart hereof.
Section 12. Headings. The headings of the sections of this Amendment have been inserted for convenience or reference only and shall in no way restrict or otherwise modify any of the terms or provisions hereof.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed as of the date first written above.
| KELLY SERVICES, INC. | |
|---|---|
| By: | /s/ Christopher D. Layden |
| Name: | Christopher D. Layden |
| Title: | Chief Executive Officer |
[Signature Page to Amendment No. 1 to Stockholder Rights Plan]
EX-10.1
Exhibit 10.1
Execution Version
KELLY SERVICES, INC.
999 West Big Beaver Road
Troy, MI 48084
January 30, 2026
Hunt Equity Opportunities, LLC
601 N. Mesa Street, Suite 1900
El Paso, TX 79901
Ladies and Gentlemen:
This letter constitutes the agreement (the “Agreement”) by and between Kelly Services, Inc., a Delaware corporation (the “Company”), and Hunt Equity Opportunities, LLC, a Delaware limited liability company (“Hunt”), with respect to the matters set forth below. The Company and Hunt have agreed that it is in their mutual interests to enter into this Agreement. The parties hereto agree as follows:
| 1. | The parties acknowledge the existence of (i) that certain Share Purchase Agreement, dated as of<br>January 9, 2026, by and between the Terence E. Adderley Revocable Trust K and Hunt (the “Purchase Agreement”) and (ii) that certain Stockholder Rights Plan, dated as of January 11, 2026, by the Company (the<br>“Rights Plan”). Promptly following the execution of this Agreement, the Company shall take all actions within its power, including, but not limited to, adoption of appropriate resolutions of the board of directors of the Company<br>(the “Board”), waivers, approvals, exemptions, redemptions, exchanges and/or amendments to the Rights Plan, to cause all outstanding Rights (as defined in the Rights Plan) to expire and cease to be exercisable pursuant to<br>Section 7(a) of the Rights Plan by amending the Expiration Time (as defined in the Rights Plan) to be immediately prior to the closing of the transactions contemplated by the Purchase Agreement and ensure that the Rights Plan is inapplicable<br>to, and shall not in any way be triggered by, (a) the consummation of the transactions contemplated by the Purchase Agreement and (b) any subsequent purchase of the Company’s equity securities by Hunt or any of its Affiliates made in<br>accordance with this Agreement, such that, solely by virtue of any of the foregoing, Hunt (together with its Affiliates) shall not be deemed an “Acquiring Person,” no “Stock Acquisition Date” shall occur, and no<br>“Distribution Time” shall arise under the Rights Plan. |
|---|
The term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934.
| 2. | From the date of this Agreement through the date that is the one-year<br>anniversary date of the closing of the transactions contemplated by the Purchase Agreement (the “Closing”), Hunt shall not, and shall cause its Affiliates and Associates and direct their respective representatives acting on their<br>behalf not to, directly or indirectly, publicly or privately, initiate, solicit, propose, encourage, effect, or consummate any going private transaction without the prior written invitation of a majority of the disinterested directors or a committee<br>of the Board consisting of at least two (2) disinterested directors (a “Company Special Committee”), unless such transaction has been proposed by an unaffiliated third party without any solicitation or invitation by Hunt, any<br>of its Affiliates, Associates or any of their respective representatives. |
|---|
The term “Associate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934.
The term “DGCL 144” shall mean Section 144 of General Corporation Law of the State of Delaware (the “DGCL”) as in effect on the day immediately preceding the date hereof, regardless of whether such statute has been repealed, rescinded or otherwise amended on or after the date hereof.
The term “disinterested director” shall have the meaning set forth in DGCL 144.
The term “going private transaction” shall have the meaning set forth in DGCL 144.
| 3. | From the date of this Agreement through the date that is the three-year anniversary date of the Closing, Hunt<br>shall not, and shall cause its Affiliates not to, directly or indirectly, engage in or effect any “controlling stockholder transaction” (as defined in DGCL 144) unless: |
|---|---|
| a. | in the case of a controlling stockholder transaction other than a going private transaction, such controlling<br>stockholder transaction is approved in the manner described in either subsection (b)(1) or subsection (b)(2) of DGCL 144, provided, however, that, solely for purposes of this Agreement, references in DGCL 144 to “disinterested<br>stockholders” shall be deemed to refer to the holders of shares of Class A common stock, par value $1.00 per share, of the Company (“Class A Common Stock”) and holders of shares of Class B common<br>stock, par value $1.00 per share (“Class B Common Stock”), voting together as a single class, with each holder thereof entitled to one vote per share, other than stockholders that have a material interest in the<br>act or transaction at issue or have a material relationship with Hunt and its Affiliates or any other person that has a material interest in the act or transaction; or |
| --- | --- |
2
| b. | in the case of a controlling stockholder transaction constituting a going private transaction, such controlling<br>stockholder transaction is approved in the manner described in subsection (c)(1) of DGCL 144, provided, however, that, solely for purposes of this Agreement, references in DGCL 144 to “disinterested stockholders” shall be deemed to refer<br>to the holders of shares of Class A Common Stock and holders of shares of Class B Common Stock, voting together as a single class, with each holder thereof entitled to one vote per share, other than stockholders that have a material<br>interest in the act or transaction at issue or have a material relationship with Hunt and its Affiliates or any other person that has a material interest in the act or transaction. |
|---|
Nothing in this Section 3 shall be deemed or construed to confer or otherwise grant to holders of shares of Class A Common Stock any right to vote on any matter, except to the extent such voting right is expressly required by applicable law or available pursuant to subparagraphs (a) and (b) above.
The term “material interest” shall have the meaning set forth in DGCL 144.
The term “material relationship” shall have the meaning set forth in DGCL 144.
| 4. | Effective as of and conditioned upon the Closing, and subject to the Company and Hunt entering into a<br>confidentiality agreement in the form attached hereto as Annex A (the “Confidentiality Agreement”), the Board shall take all actions necessary or appropriate within its power (subject to the exercise of its fiduciary duties under<br>applicable law) to (A) appoint four (4) individuals designated in writing by Hunt (the “Hunt Designees”) to the Board with a term expiring at the 2026 annual meeting of stockholders of the Company (including any<br>adjournment or postponement thereof, the “2026 Annual Meeting”) and to ensure that, immediately following the Closing, (i) the Board consists of (I) the Hunt Designees, (II) Christopher Layden, the Chief Executive<br>Officer of the Company, who shall continue in his role as a member of the Board, and (III) three (3) directors serving on the Board as of the date of this Agreement (the “Kelly Directors”) that shall meet the independence and<br>financial literacy requirements set forth in the Nasdaq Global Market listing standards, the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations of the SEC, both with respect to the Company and its subsidiaries as well as with<br>respect to Hunt (treating Hunt as if it were the Company for purposes of applying such criteria to determine independence from Hunt), at least one (1) of whom shall be an “audit committee financial expert” as defined under SEC<br>Regulation S-K, and all of whom shall continue in their roles as members of the Board, (ii) James Christopher Hunt be appointed Chairman of the Board and (iii) the audit committee of the Board<br>consists of the Kelly Directors and (B) subject to the exercise by the Board of its fiduciary duties under applicable law, recommend, support and solicit proxies for the election of the Hunt Designees at the 2026 Annual Meeting in the same<br>manner as for the Company’s other nominees at the 2026 Annual Meeting. The parties acknowledge and agree that the foregoing appointments shall be made in compliance with applicable law, the Company’s organizational documents and<br>applicable stock exchange rules, and that the |
|---|
3
| Company shall cooperate with and use reasonable best efforts to take all actions and make all filings necessary or advisable to effect such appointments in accordance therewith. No person shall<br>be a Hunt Designee without first (i) having satisfactorily completed customary director vetting and background screening procedures that are consistent with the Board’s current practice, (ii) being reasonably acceptable to the<br>Corporate Governance and Nominating Committee of the Board (the “Corporate Governance and Nominating Committee”) (such acceptance or recommendation not to be unreasonably withheld, conditioned or delayed), provided that in no<br>event will the phrase “reasonably acceptable” or the parenthetical set forth in this clause (ii) be construed to limit the directors’ obligations to exercise their fiduciary duties under applicable law, and (iii) having<br>completed onboarding procedures consistent with the Board’s current practice. |
|---|
The Company represents and warrants as of the date of this Agreement that it has not nominated any person for election to the Board at the 2026 Annual Meeting, and the Company further covenants and agrees that, from and after the date hereof and through the date of the Closing, it will not nominate any person for election to the Board at the 2026 Annual Meeting. Furthermore, the Company represents and warrants that it has taken all actions necessary or appropriate to effect the resignations of the members of the Board listed on Schedule I, and that each such individual has tendered an irrevocable resignation from their position as a member of the Board effective as of immediately prior to the Closing.
The Company represents and warrants that a majority of the Board has approved and authorized this Agreement and the transactions contemplated hereby, including the transactions contemplated by the Purchase Agreement and the appointment of the Hunt Designees to the Board as set forth in this Section 4. The Company represents and warrants as of the date of this Agreement that the Board has not adopted a resolution to deem the Closing a “Change in Control” under the Company’s 2017 or 2025 Equity Incentive Plans or Senior Executive Severance Plan (“Compensation Plans”), and the Company further covenants and agrees that, from and after the date hereof and through the date of the Closing, the Board will not adopt a resolution to deem the Closing a “Change in Control” under the Company’s Compensation Plans.
The Company covenants and agrees that, promptly following the date of this Agreement, the Board shall take all actions necessary or appropriate within its power (subject to the exercise of its fiduciary duties under applicable law) to, effective as of the Closing, (i) appoint James Christopher Hunt, James K. Hunt and Angela Brock-Kyle to the Corporate Governance and Nominating Committee and reconstitute the Corporate Governance and Nominating Committee such that the members of the Corporate Governance and Nominating Committee shall be James Christopher Hunt, James K. Hunt and Angela Brock-Kyle and (ii) appoint James Christopher Hunt and Edward Escudero to the Compensation and Talent Management Committee of the Board (the “Compensation Committee”) such that the members of the Compensation Committee shall be James Christopher Hunt, Edward Escudero and Robert S. Cubbin.
4
The Company covenants and agrees that, promptly following the date of this Agreement, the Board shall take all actions necessary or appropriate within its power (subject to the exercise of its fiduciary duties under applicable law) to adopt a corporate opportunities waiver in favor of Hunt and its affiliates (as defined in Section 203 of the DGCL), in the form attached hereto as Annex B, which waiver shall, to the fullest extent permitted by the DGCL, renounce any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any business opportunity that is from time to time presented to Hunt or any of its Affiliates or any of their respective officers, directors, members, principals, partners, employees, agents, stockholders or representatives (other than any such person who is also an officer or employee of the Company or any of its subsidiaries).
The Company further covenants and agrees that, subject to the exercise by the Board of its fiduciary duties under applicable law, the Company shall include in its proxy statement for the 2026 Annual Meeting a proposal recommending that the stockholders of the Company approve an amendment to the certificate of incorporation of the Company, as amended, in the form attached hereto as Annex C (the “Charter Amendment”), to (i) permit actions by written consent of the stockholders of the Company, (ii) permit the Chairman of the Board to call special meetings of the stockholders of the Company, (iii) permit a majority of the holders of the Class B Common Stock to call special meetings of the stockholders of the Company, and (iv) permit stockholders to fill vacancies or newly created directorships. The Board shall, subject to the exercise of its fiduciary duties under applicable law, recommend, support and solicit proxies in favor of the Charter Amendment in the same manner as the Company recommends, supports and solicits proxies for the election of its director nominees at the 2026 Annual Meeting.
The Company covenants and agrees that, promptly following the approval of the Charter Amendment by the stockholders of the Company, the Board shall take all actions necessary or appropriate within its power (subject to the exercise of its fiduciary duties under applicable law) to adopt amendments to the bylaws of the Company, as amended, to reflect and implement the Charter Amendment, including to establish procedures governing stockholder action by written consent consistent with the Charter Amendment.
Hunt represents and warrants that, to the best of Hunt’s knowledge, the director and officer questionnaires completed by the Hunt Designees are true, correct and complete, in all material respects, and do not contain any untrue statement of material fact or omit to state any material fact.
5
| 5. | Following the Closing, the Company and Hunt will enter into a registration rights agreement, in the form<br>attached hereto as Annex D (the “Registration Rights Agreement”). |
|---|---|
| 6. | From and after the Closing and until Hunt ceases to own a majority of the voting stock of the Company, Hunt<br>shall be entitled to receive, and the Company shall provide, upon reasonable notice and subject to the Company and Hunt entering into the Confidentiality Agreement, the following: |
| --- | --- |
| a. | as soon as reasonably practicable, a trial balance as of (i) the Closing or (ii) a date of<br>convenience as agreed upon with Hunt, and prepared in the ordinary course with the Company’s other monthly financial statements, to be delivered within 30 days of such date or at such time as agreed upon with Hunt, with agreement that the<br>Company’s fiscal year 2025 audited financial statements and related footnotes and other disclosures may serve as an interim proxy; |
| --- | --- |
| b. | as soon as reasonably practicable, and in any event within 30 days after the end of each month, (i) an<br>unaudited consolidated balance sheet of the Company, as of the end of each such monthly period and (ii) an unaudited consolidated statement of income of the Company, if any, for such period, in each case, prepared in accordance with generally<br>accepted accounting principles in the United States (“GAAP”), to the extent such monthly financial statements are produced in the ordinary course; |
| --- | --- |
| c. | as soon as reasonably practicable, and in any event within the later of 30 days or the applicable SEC reporting<br>deadline after the end of each quarterly accounting period in each fiscal year of the Company, an unaudited consolidated balance sheet of the Company, as of the end of each such quarterly period, and unaudited consolidated statements of income and<br>cash flows of the Company for such period, in each case, prepared in accordance with GAAP; |
| --- | --- |
| d. | as soon as reasonably practicable, and in any event within the later of 75 days or the applicable SEC reporting<br>deadline after the end of each fiscal year of the Company, an audited consolidated balance sheet of the Company, as of the end of such fiscal year of the Company, and audited consolidated statements of income and cash flows of the Company, for such<br>year, in each case, prepared in accordance with GAAP; |
| --- | --- |
| e. | as soon as reasonably practicable, and in any event within 20 days after the end of each month, or at such time<br>as agreed upon with Hunt, a trial balance as of the end of each such monthly period and for the year-to-date; |
| --- | --- |
6
| f. | such other information as reasonably requested by Hunt in order to comply with any applicable tax reporting<br>requirements and to produce consolidated financial reports on a monthly basis; and |
|---|---|
| g. | access to the Company’s chief financial officer (and any such personnel the CFO deems appropriate), upon<br>reasonable notice, to discuss accounting, financial or tax matters as Hunt may reasonably request in connection with Hunt’s internal accounting, tax and consolidation processes. |
| --- | --- |
Hunt agrees that the informational requirements set forth in subparagraphs (c) and (d) shall be deemed to have been satisfied by the timely filing of the Company’s Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K so long as such filings are made within the timelines set forth in subparagraphs (c) and (d), as applicable.
The Company covenants and agrees that it shall use reasonable best efforts to cooperate with Hunt in the preparation of a fair value valuation of the Company as of (i) the Closing or (ii) a date of convenience as agreed upon with Hunt, including by providing such information, documentation and access to personnel as may be reasonably requested by Hunt, in each case for purposes of Hunt’s purchase price accounting.
| 7. | Hunt represents and warrants that this Agreement (i) has been duly authorized, executed and delivered by<br>it and is a valid and binding obligation of Hunt, enforceable against Hunt in accordance with its terms and (ii) does not and will not violate any law, any order of any court or other agency of government, or the organizational documents of<br>Hunt. |
|---|---|
| 8. | The Company hereby represents and warrants as of the date of this Agreement that this Agreement (i) has<br>been duly authorized, executed and delivered by it and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, (ii) does not require the approval of the stockholders of the Company and<br>(iii) does not and will not violate any law, any order of any court or other agency of government, the certificate of incorporation of the Company, as amended, or the bylaws of the Company, as amended. |
| --- | --- |
| 9. | The parties recognize and agree that if for any reason any of the provisions of this Agreement are not<br>performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy. Accordingly, each party agrees that, in addition to any<br>other remedies at law or in equity, the other party shall be entitled to an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, without posting a bond or other undertaking, to prevent breaches or<br>threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Delaware Courts (as defined below). In the event that any action shall be brought in equity to enforce the provisions of this<br>Agreement, neither party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law or that any injunction, specific performance or other equitable relief is not an appropriate remedy for any reason.<br> |
| --- | --- |
7
| 10. | This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective<br>successors and permitted assigns (including any direct or indirect successor by purchase, merger, consolidation, operation of law or otherwise to all or substantially all of the business and/or assets of a party). From the date of this Agreement<br>through the date that is the three-year anniversary date of the Closing, Hunt shall not (i) sell, transfer or otherwise dispose of any shares of capital stock or other equity interests of the Company or Hunt, or (ii) permit the sale or<br>transfer or other disposition of limited liability company interests or other interests in Hunt (including contractual rights of control or similar interests), in each case, via a single transaction or series of related transactions, the result of<br>which would be a Person or group other than an Affiliate of Hunt having a majority of the voting stock of the Company (directly or indirectly), without requiring such Person or group, as applicable, to expressly assume and agree to perform<br>Sections 2, 3, 9 through 18, and 20 of this Agreement in the same manner and to the same extent that Hunt would be required to perform if no such transaction or series of related transactions had taken place. Hunt<br>agrees not to, and shall cause its Affiliates not to, sell, transfer or otherwise convey any of the equity interests of the Company to an Affiliate of Hunt unless such Affiliate expressly assumes and agrees to perform this Agreement in the same<br>manner and to the same extent that Hunt would be required to perform if no such sale, transfer or conveyance had taken place. Any assignment or transfer (in each case, whether direct or indirect by purchase, merger, consolidation, operation of law<br>or otherwise) of this Agreement or any party’s rights, interests, or obligations hereunder without the prior written approval of both parties hereto shall be void. No amendment, modification, supplement or waiver of any provision of this<br>Agreement shall be effective unless it is in writing and signed by the party or parties hereto affected thereby, and then only in the specific instance and for the specific purpose stated therein. Any waiver by either party hereto of a breach of any<br>provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party hereto to insist upon strict adherence to any<br>term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. |
|---|
The term “Person” means any individual, corporation (including any not for profit corporation), general or limited partnership, limited liability partnership, joint venture, estate, trust, firm, company (including any limited liability company or joint stock company), exempted company, association, organization, entity or governmental authority.
8
Notwithstanding anything in this Agreement, nothing herein shall prohibit, restrict or otherwise limit Hunt or any of its Affiliates from pledging or granting a security interest in all or any portion of the equity securities of the Company held by Hunt or any of its Affiliates in connection with a bona fide financing transaction with a third-party institutional lender that (i) is not an Affiliate of Hunt or the Company, and (ii) is regularly engaged in the business of making loans in the ordinary course of its business. Furthermore, any foreclosure on such equity securities or other exercise of remedies by any such institutional lender shall be permitted and shall not violate any obligations hereunder.
| 11. | If any provision of this Agreement is held invalid, illegal or unenforceable by any court of competent<br>jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid, illegal or unenforceable only in part or degree shall remain in full force and effect to the extent not held<br>invalid, illegal or unenforceable. The parties further agree to negotiate in good faith to replace such invalid, illegal or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible,<br>the purposes of such invalid, illegal or unenforceable provision. |
|---|---|
| 12. | This Agreement, and any dispute arising out of, relating to or in connection with this Agreement shall be<br>governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of conflict of laws that would require the application of the law of a different jurisdiction. Each party to this Agreement<br>(a) irrevocably and unconditionally submits to the personal jurisdiction of the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction, any state or federal court in the State of Delaware (the<br>“Delaware Courts”)), (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that any actions or proceedings arising in<br>connection with this Agreement or the transactions contemplated by this Agreement shall be brought, tried and determined only in the Delaware Courts, (d) waives any claim of improper venue or any claim that those courts are an inconvenient<br>forum and (e) agrees that it will not bring any action relating to this Agreement or the transactions contemplated hereunder in any court other than the Delaware Courts. The parties to this Agreement agree that mailing of process or other<br>papers in connection with any such action or proceeding in the manner provided in Section 14 or in such other manner as may be permitted by applicable law, shall be valid and sufficient service thereof.<br> |
| --- | --- |
In the event of any dispute regarding or arising from this Agreement, the prevailing party shall be entitled to recover its reasonable and documented expenses, attorneys’ fees and costs incurred in connection with such dispute, including with respect to litigation, or in the enforcement or collection of any judgment or award rendered therein.
9
EACH OF THE PARTIES TO THIS AGREEMENT, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. NEITHER PARTY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH OF THE PARTIES HEREBY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.
| 13. | This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.<br> |
|---|---|
| 14. | Any notice or other communication required or permitted hereunder shall be in writing (email being sufficient)<br>and shall be deemed given when delivered in person, on the date sent if sent by email, on the next business day following delivery to an overnight courier service if sent by overnight courier or on the day of attempted delivery by postal service if<br>mailed by registered or certified mail, return receipt requested, postage paid, in each case properly addressed as follows: |
| --- | --- |
If to the Company:
Kelly Services, Inc.
999 West Big Beaver Road
Troy, MI 48084
Attn: Vanessa Williams
Email: vanessa.williams@kellyservices.com
with a copy to (which shall not constitute notice):
Potter Anderson & Corroon LLP
1313 North Market Street, 6th Floor
Wilmington, DE 19801
10
Attn: Mark A. Morton, Michael A. Pittenger and Rebecca E. Salko
Email: mmorton@potteranderson.com; mpittenger@potteranderson.com;
rsalko@potteranderson.com
Ifto Hunt:
Hunt Equity Opportunities, LLC
601 N. Mesa Street, Suite 1900
El Paso, TX 79901
Attn: Paul Donnelly and Kara E. Harchuck
Email: paul.donnelly@huntcompanies.com;
kara.harchuck@huntcompanies.com
with a copy to (which shall not constitute notice):
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attn: Ross A. Fieldston and Jeffrey D. Marell
Email: rfieldston@paulweiss.com; jmarell@paulweiss.com
Either party may by notice given in accordance with this Section 14 to the other party designate updated information for notices hereunder.
| 15. | Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all<br>negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party hereto and its counsel cooperated and participated in the drafting and preparation of this<br>Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against either party by reason of its drafting or preparation. Accordingly, any rule of<br>law or any legal decision that would require interpretation of any ambiguities in this Agreement against either party hereto that drafted or prepared it is of no application and is hereby expressly waived by each of the parties, and any controversy<br>over interpretations of this Agreement shall be decided without regard to events of drafting or preparation. |
|---|---|
| 16. | This Agreement may be executed by the parties hereto in separate counterparts (including by .pdf), each of<br>which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument. |
| --- | --- |
| 17. | This Agreement, together with the other documents and instruments referred to herein, constitutes the entire<br>agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties hereto and their Affiliates, or any of them, related to the subject matter hereof. |
| --- | --- |
11
| 18. | Notwithstanding anything to the contrary set forth in this Agreement, (a) the Company may take the<br>following actions only with the prior approval of, and shall take any such action if directed to do so by, a majority of the disinterested directors (or a Company Special Committee): (i) amending, restating, modifying, altering or otherwise changing<br>any provision of this Agreement; (ii) waiving any right under this Agreement; (iii) terminating this Agreement or seeking to exercise any of the remedies contemplated by Section 9 of this Agreement;<br>(iv) taking any action under this Agreement that expressly requires the approval of a majority of the disinterested directors (or a Company Special Committee); (v) making any decision or determination, or taking any action under or with respect<br>to this Agreement that would reasonably be expected to be, or is required to be, approved, authorized, ratified or adopted by the Board and (vi) agreeing to do any of the foregoing and (b) no decision or determination shall be made, or<br>action taken, by the Board under or with respect to this Agreement without first obtaining the approval of a majority of the disinterested directors (or a Company Special Committee). Hunt and the Company agree that the disinterested directors (or a<br>Company Special Committee) shall have the power to retain independent legal, financial and other advisors and that the Company shall provide adequate resources, as determined by the disinterested directors (or a Company Special Committee), to<br>support their or its activities, including the compensation of such advisors. |
|---|---|
| 19. | Hunt covenants and agrees that, immediately after the Closing, Hunt will notify the Company in writing that the<br>Closing has occurred. |
| --- | --- |
| 20. | Hunt acknowledges and agrees that, to the extent that Hunt remains subject to the Company’s Insider<br>Trading Policy (the “Policy”) pursuant to the terms of the Confidentiality Agreement, it shall, and shall direct its Affiliates to, comply with the provisions of the Policy, including those applicable to “Restricted<br>Persons,” and Section 16 Compliance Procedures. Hunt acknowledges that the Hunt Designees will be subject to the Policy as “Restricted Persons” and Section 16 Compliance Procedures in their capacity as directors.<br> |
| --- | --- |
[The remainder of this page is intentionally left blank.]
12
Please confirm that the foregoing correctly sets forth our agreement by signing and returning to the Company a copy of this Agreement.
| Very truly yours, | |
|---|---|
| KELLY SERVICES, INC. | |
| By: | /s/ Christopher D. Layden |
| Name: | Christopher D. Layden |
| Title: | Chief Executive Officer |
Signature Page to Letter Agreement
Accepted and agreed to as of the date first written above:
| HUNT EQUITY OPPORTUNITIES, LLC | |
|---|---|
| By: HEO Finance, LLC, its Sole Member | |
| By: Hunt ELP, Ltd., its Sole Member | |
| By: | /s/ Ryan McCrory |
| Name: Ryan McCrory | |
| Title: President |
Signature Page to Letter Agreement
Schedule I
| 1. | Terrence B. Larkin |
|---|---|
| 2. | Gerald S. Adolph |
| --- | --- |
| 3. | George S. Corona |
| --- | --- |
| 4. | InaMarie Felix Johnson |
| --- | --- |
| 5. | Peter W. Quigley |
| --- | --- |
Annex A
Confidentiality Agreement
[Attached.]
Annex B
Corporate Opportunities Waiver
[Attached.]
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF
KELLY SERVICES,INC.^^
Corporate Opportunities Waiver
WHEREAS, pursuant to Section 122(17) of the General Corporation Law of the State of Delaware (“DGCL”), a Delaware corporation has the power to renounce, in its certificate of incorporation or by action of its board of directors, any interest or expectancy of the corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or one or more of its officers, directors or stockholders.
NOW THEREFORE, BE IT RESOLVED, that, in recognition and anticipation that (i) Hunt Equity Opportunities, LLC (“Hunt”) and its affiliates (as defined in Section 203 of the DGCL) and its or their respective officers, directors, principals, members, partners, employees, agents, stockholders or representatives (other than any such person who is also an officer or employee of Kelly Services, Inc., a Delaware corporation (the “Corporation”), or any of its subsidiaries) **** may (A) now or in the future serve and may continue to serve as directors, officers, employees, consultants and/or agents of, or invest in, one or more corporations, general or limited partnerships, limited liability companies, joint ventures, trusts, associations or other entities other than the Corporation or its subsidiaries and (B) now or in the future engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, (ii) such persons may also serve as directors, officers, employees, consultants and/or agents of the Corporation and (iii) the Corporation will derive substantial benefits from the service of such persons as directors, officers, employees, consultants and/or agents of the Corporation, the board of directors of the Corporation (the “Board”) hereby determines that it is advisable and in the best interests of the Corporation and its stockholders that the rights of the Corporation, and the duties of any such persons, be determined and delineated as provided in these resolutions in respect of any Potential Business Opportunities (as defined in the corporate opportunities waiver in the form attached hereto as Exhibit A (the “Corporate Opportunities Waiver”)); and
FURTHER RESOLVED, that, pursuant to Section 122(17) of the DGCL, the Board hereby authorizes, approves and adopts, in all respects, the Corporate Opportunities Waiver attached hereto as Exhibit A.
Exhibit A
Corporate Opportunities Waiver
It is recognized and anticipated that (a) Hunt Equity Opportunities, LLC (“Hunt”) and its affiliates and its or their respective officers, directors, principals, members, partners, employees, agents, stockholders or representatives (other than any such person who is also an officer or employee of Kelly Services, Inc., a Delaware corporation (the “Corporation”), or any of its subsidiaries, each such person, a “Covered Person”) may serve as directors, officers, employees, consultants and/or agents of, or invest in, one or more corporations, general or limited partnerships, limited liability companies, joint ventures, trusts, associations or other entities other than the Corporation or its subsidiaries (each, an “Other Entity”); (b) the Corporation, directly or indirectly, may engage in the same, similar or related lines of business as those engaged in by an Other Entity or its affiliates or associates or any Covered Person and other business activities that overlap with or compete with those in which an Other Entity or its affiliates or associates or any Covered Person may engage; (c) the Corporation may have an interest in the same areas of business opportunities as an Other Entity or its affiliates or associates or any Covered Person; (d) Covered Persons may also serve as directors, officers, employees, consultants and/or agents of the Corporation and may, directly or indirectly, engage in the same, similar or related lines of business as in which the Corporation directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage; (e) the Corporation will derive substantial benefits from the service of Covered Persons as directors, officers, employees, consultants and/or agents of the Corporation; and (f) it is advisable and in the best interests of the Corporation that the rights of the Corporation, and the duties of any Covered Persons, be determined and delineated as provided in this waiver in respect of any Potential Business Opportunities (as defined below).
If any Covered Person is presented or offered, or otherwise acquires knowledge of, a potential transaction or matter that may constitute or present a business opportunity for the Corporation or any of its subsidiaries, in which the Corporation or any of its subsidiaries could, but for this waiver, have an interest or expectancy (any such actual or potential transaction, matter or business opportunity, a “Potential Business Opportunity”), (i) such Covered Person will, to the fullest extent permitted by law, have no fiduciary duty or other duty or obligation to communicate, offer or refer such Potential Business Opportunity to the Corporation or any of its subsidiaries or to give any notice to the Corporation or any of its subsidiaries regarding such Potential Business Opportunity (or any matter related thereto), and such Covered Person shall have no fiduciary duty or other duty or obligation to refrain from communicating, offering or referring such Potential Business Opportunity to an Other Entity or its affiliates or associates or from participating or investing in such Potential Business Opportunity, (ii) if such Covered Person communicates, offers or refers a Potential Business Opportunity to an Other Entity or its affiliates or associates or participates or invests in such Potential Business Opportunity, such Covered Person, to the fullest extent permitted
by law, will not be liable to the Corporation, any of its subsidiaries or any of its stockholders for any failure to communicate, offer or refer such Potential Business Opportunity to the Corporation or its subsidiaries, or for any failure to give notice to or otherwise inform the Corporation or any of its subsidiaries regarding such Potential Business Opportunity or any matter related thereto, (iii) such Covered Person or an Other Entity and its affiliates and associates may engage or invest in, independently or with others, any such Potential Business Opportunity, (iv) neither the Corporation nor any of its subsidiaries shall have any right in or to such Potential Business Opportunity or to receive any income or proceeds derived therefrom, and (v) the Corporation shall have no interest or expectancy, and hereby specifically renounces, on behalf of itself and its subsidiaries, any interest or expectancy in, or right to be offered an opportunity to participate in, any such Potential Business Opportunity, unless (for any of clauses (i) through (v)) any Covered Person acquires knowledge of such Potential Business Opportunity solely through or solely in connection with any Covered Person’s attendance at a meeting of the board of directors of the Corporation (or any committee or subcommittee thereof) or receipt of materials in connection with a meeting of the board of directors of the Corporation (or any committee or subcommittee thereof) or the Corporation’s response to a request for information from Hunt or all of the following conditions are satisfied: (a) such Potential Business Opportunity is expressly presented or offered to a Covered Person in the person’s capacity as a stockholder or director of the Corporation and not in such person’s capacity as a director, officer, employee, partner, principal, member, manager, agent or representative of Hunt, any of its affiliates, or any Other Entity, (b) such Potential Business Opportunity relates to the Corporation’s staffing and consulting services, including direct placement, recruitment, recruitment process outsourcing, temporary staffing services, management services provider, vendor on-site, business process outsourcing and vendor management or any combination of the above in the following business units of the Corporation: (1) enterprise talent management, (2) science, engineering and technology, and (3) education, and is one that the Corporation or any of its subsidiaries is legally and contractually permitted to undertake, and (c) the Covered Person reasonably believes that the Corporation possesses, or would reasonably be expected to be able to possess, the resources necessary to exploit such Potential Business Opportunity. Notwithstanding the foregoing, a business opportunity shall not be deemed to be a Potential Business Opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy, in each case as determined by the Board.
For purposes of this waiver, the following terms shall have the meanings set forth below:
“affiliate” shall have the meaning set forth in Section 203 of the General Corporation Law of the State of Delaware.
“associate” shall have the meaning set forth in Section 203 of the General Corporation Law of the State of Delaware.
“person” means any natural person, corporation, limited liability company, general or limited partnership, joint venture, trust, association, or other entity.
“subsidiary,” when used with respect to any person, means any other person of which (x) in the case of a corporation, (1) at least 50% of the equity or (2) securities representing at least 50% of the outstanding voting power of such other person are owned or controlled, directly or indirectly, by such first person, by any one or more of its subsidiaries, or by such first person and one or more of its subsidiaries or (y) in the case of any person other than a corporation, such first person, one or more of its subsidiaries, or such first person and one or more of its subsidiaries (1) owns at least 50% of the equity interests thereof or (2) has the power to elect or direct the election of at least 50% of the members of the governing body thereof or otherwise has control over such organization or entity.
Annex C
Charter Amendment
[Attached.]
CERTIFICATE OF AMENDMENT
TO THE
AMENDED ANDRESTATED
CERTIFICATE OF INCORPORATION
OF
KELLY SERVICES, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
Kelly Services, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify as follows:
This Certificate of Amendment (the “Certificate of Amendment”) amends the provisions of the Corporation’s Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on May 14, 2024 (the “Certificate of Incorporation”).
The Certificate of Incorporation is hereby amended by amending and restating in its entirety Article FOURTH, Division B, Section (b) thereof to read as follows:
“Voting Rights. Except on matters where their vote is required by Delaware law, the holders of the Class A Common Stock shall not be entitled to vote on any matter coming before the stockholders. The holders of the Class B Common Stock shall be entitled to one vote per share held as of the applicable record date for each meeting of stockholders (and actions by consent in lieu of meetings).”
- The Certificate of Incorporation is hereby amended by amending and restating in its entirety Article FIFTH thereof to read as follows:
“FIFTH: The business, property and affairs of this corporation shall be managed by a Board of Directors consisting of no fewer than five (5) and no more than eleven (11) members, the exact number to be determined from time to time by resolution of the Board of Directors. At each annual meeting of the stockholders of the corporation, all director nominees shall stand for election to terms expiring at the next succeeding annual meeting, with each director to hold office until his successor is duly elected and qualified, subject, however, to prior death, resignation, retirement, disqualification or removal from office. The Board of Directors may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by the bylaws of the corporation (the “Bylaws”) directed or required to be exercised or done by the stockholders.
Newly created directorships resulting from any increase in the authorized number of directors and vacancies in the Board of Directors from death, resignation, retirement, disqualification, removal from office or other reason, may be filled by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director, or by the stockholders in any manner permitted by applicable law, and directors so chosen shall hold office for a term expiring at the next annual meeting of the stockholders of the corporation and until their successors are duly elected and qualified, subject, however, to prior death, resignation, retirement, disqualification or removal from office. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Any director, or the entire Board of Directors, may be removed at any time, with or without cause. The affirmative vote or consent of the holders of a majority of the voting power of all of the stock of this corporation entitled to vote in elections of directors shall be required to remove a director from office. The stockholders of the corporation are expressly prohibited from cumulating their votes in any election of directors of the corporation.”
- The Certificate of Incorporation is hereby amended by amending and restating in its entirety Article SEVENTH thereof to read as follows:
“SEVENTH: Bylaws of the corporation may be adopted, amended or repealed by the affirmative vote of a majority of the total number of directors or by the affirmative vote or consent of the holders of a majority of the voting power of all of the stock of this corporation entitled to vote in elections of directors. The Bylaws may contain any provision for the regulation and management of the affairs of the corporation and the rights or powers of its stockholders, directors, officers, or employees not inconsistent with the laws of the State of Delaware or this certificate of incorporation.”
- The Certificate of Incorporation is hereby amended by amending and restating in its entirety Article EIGHTH thereof to read as follows:
“EIGHTH: Any action required to be taken at any annual or special meeting of the stockholders of this corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to this corporation in the manner required by the General Corporation Law of the State of Delaware.”
- The Certificate of Incorporation is hereby amended by amending and restating in its entirety Article TENTH thereof to read as follows:
“TENTH: Special meetings of the stockholders may be called only by (i) holders of at least a majority of the voting power of the Class B Common Stock; (ii) the Board of Directors or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the Bylaws, include the power to call such meetings; or (iii) the chairperson of the Board of Directors.”
This amendment was duly adopted in accordance with the provisions of Section 242 of the DGCL.
All other provisions of the Certificate of Incorporation shall remain in full force and effect.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Corporation, has executed this Certificate of Amendment on this [•] day of [•], 2026.
| KELLY SERVICES, INC. |
|---|
| Name: Vanessa Peterson Williams |
| Title: EVP, General Counsel and Corporate Secretary |
Annex D
Registration Rights Agreement
[Attached.]
EX-10.2
Exhibit 10.2
KELLY SERVICES, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of January 30, 2026 by and between Kelly Services, Inc., a Delaware corporation (the “Company”) and Hunt Equity Opportunities, LLC (the “Holder”). Except as otherwise specified herein, all capitalized terms used in this Agreement are defined in Exhibit A attached hereto.
In consideration of 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:
Section 1 Demand Registrations.
(a) Requests for Registration. At any time and from time to time, the Holder may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-1 or any similar long-form registration statement (“Long-Form Registrations”) or on Form S-3 or any similar short-form registration statement (“Short-Form Registrations”) if available (any such requested registration, a “Demand Registration”). The Holder may request that any Demand Registration be made pursuant to Rule 415 under the Securities Act (a “Shelf Registration”) and, if the Company is a WKSI at the time any such request is submitted to the Company or will become one by the time of the filing of such Shelf Registration with the SEC, may request that such Shelf Registration be an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration Statement”). Each request for a Demand Registration must specify the approximate number or dollar value of Registrable Securities requested to be registered by the Holder and (if known) the intended method of distribution (which may include underwritten offerings). Subject to Section 1(e), the Holder will be entitled to request an unlimited number of Demand Registrations, provided that the aggregate anticipated offering price, net of any underwriting discounts or commissions, of each such offering is at least $25,000,000. Subject to Section 1(e), promptly following receipt of any request for a Demand Registration (a “Demand Notice”), the Company shall prepare and file the applicable registration statement with the SEC as promptly as reasonably practicable and, in any event, within 45 days after receipt of such Demand Notice.
(b) Form of Registrations. All Long-Form Registrations will be underwritten registrations unless otherwise approved by the Holder. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form.
(c) Shelf Registrations.
(i) For so long as a registration statement for a Shelf Registration (a “Shelf Registration Statement”) is and remains effective, the Holder will have the right at any time or from time to time to elect to sell pursuant to an offering (including an underwritten offering, subject to Section 1(c)(v)) Registrable Securities available for sale pursuant to such registration statement (such Registrable Securities, the “Shelf Registrable Securities”), which may include Shelf Registrable Securities to be sold by the Holder. If the Holder desires to sell Registrable Securities pursuant to an underwritten offering, the
Holder shall deliver to the Company a written notice (a “Shelf Offering Notice”) specifying the number of Shelf Registrable Securities that the Holder desires to sell pursuant to such underwritten offering (the “Shelf Offering”). The Company, subject to Section 1(d) and Section 7, will include in such Shelf Offering all Shelf Registrable Securities with respect to which the Company has received written requests for inclusion (which request will specify the maximum number of Shelf Registrable Securities intended to be disposed of by the Holder) within five (5) days after the receipt of the Shelf Offering Notice. The Company will, as expeditiously as possible (and in any event within 20 days after the receipt of a Shelf Offering Notice), but subject to Section 1(d), use its reasonable best efforts to facilitate such Shelf Offering.
(ii) If the Holder wishes to engage in an underwritten block trade or bought deal off of a Shelf Registration Statement (either through filing an Automatic Shelf Registration Statement or through a take-down from an already existing Shelf Registration Statement) (each, an “Underwritten Block Trade”), then notwithstanding the time periods set forth in Section 1(c)(i), the Holder will submit the Shelf Offering Notice with respect to the Underwritten Block Trade not less than two (2) Business Days prior to the day such offering is first anticipated to commence. The Company will as expeditiously as possible use its reasonable best efforts to facilitate such Underwritten Block Trade (which may close as early as two (2) Business Days after the date it commences); provided that the aggregate anticipated offering price, net of any underwriting discounts or commissions, of such offering is at least $10,000,000.
(iii) All determinations as to whether to complete any Shelf Offering and as to the timing, manner, price and other terms of any Shelf Offering contemplated by this Section 1(c) shall be determined by the Holder, and the Company shall use its reasonable best efforts to cause any Shelf Offering to occur as promptly as practicable.
(iv) The Company will, at the request of the Holder, file any prospectus supplement or any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Holder to effect such Shelf Offering.
(v) Subject to Section 11(e), the Holder and its Permitted Assignees will be entitled to submit an unlimited number of Shelf Offering Notices, provided that the aggregate anticipated offering price, net of any underwriting discounts or commissions, of each such offering is at least $25,000,000.
(d) Priority on Demand Registrations and Shelf Offerings. The Company will not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Holder, which consent shall not be unreasonably withheld, conditioned or delayed. If a Demand Registration or a Shelf Offering is an underwritten offering and the managing underwriters advise the Company in writing that in their reasonable and good faith opinion the number of Registrable Securities and (if permitted hereunder) other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities (if any), which can be sold therein without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, then the Company will include in such offering (prior to the inclusion of any securities which are not Registrable Securities) the number of Registrable Securities requested to be included which, in the reasonable and good faith opinion of such underwriters, can be sold, without any such adverse effect.
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(e) Restrictions on Demand Registration and Shelf Offerings.
(i) The Company may postpone, for up to 90 days from the date of the request (the “Suspension Period”), the filing or the effectiveness of a registration statement for a Demand **** Registration or suspend the use of a prospectus that is part of a Shelf Registration Statement (and therefore suspend sales of the Shelf Registrable Securities) by providing written notice to the Holder, to be in the form of a certificate signed by the Company’s chief executive officer or chief financial officer stating that matters contained in such certificate reflect the good faith judgment of the board of directors of the Company, if the following conditions are met: (A) the Company determines that the offer or sale of Registrable Securities would reasonably be expected to have a material adverse effect on any proposal or plan by the Company or any Subsidiary to engage in any material acquisition of assets or stock (other than in the ordinary course of business) or any material merger, consolidation, tender offer, recapitalization, reorganization, financing or other transaction involving the Company and (B) upon advice of counsel, the sale of Registrable Securities pursuant to the registration statement would require disclosure of material non-public information not otherwise required to be disclosed under applicable law, and either (x) the Company has a bona fide business purpose for preserving the confidentiality of such transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate such transaction, or (z) such transaction renders the Company unable to comply with SEC requirements, in each case under circumstances that would make it impractical or inadvisable to cause the registration statement (or such filings) to become effective or to promptly amend or supplement the registration statement on a post-effective basis, as applicable. The Company may delay or suspend the effectiveness of a Demand Registration or Shelf Registration Statement pursuant to this Section 1(e)(i) no more than two (2) times in any twelve (12)-month period or for more than one hundred and twenty (120) days during any 12-month period (for avoidance of doubt, in addition to the Company’s rights and obligations under Section 4(a)(vi)); provided that the Company shall not register any securities for its own account or that of any other stockholder during such period other than pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan.
(ii) In the case of an event that causes the Company to suspend the use of a Shelf Registration Statement as set forth in paragraph (e)(i) above or pursuant to Section 4(a)(vi) (a “Suspension Event”), the Company will give a notice to the Holder whose Registrable Securities are registered pursuant to such Shelf Registration Statement (a “Suspension Notice”) to suspend sales of the Registrable Securities and such notice must state generally the basis for the notice and that such suspension will continue only for so long as the Suspension Event or its effect is continuing. The Holder agrees not to effect any sales of its Registrable Securities pursuant to such Shelf Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice. The Holder may recommence effecting
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sales of the Registrable Securities pursuant to the Shelf Registration Statement (or such filings) following further written notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice will be given by the Company to the Holder promptly following the conclusion of any Suspension Event (and in any event during the permitted Suspension Period).
(f) Selection of Underwriters. The Holder will have the right to select the investment banker(s) and manager(s) to administer any underwritten offering in connection with any Demand Registration or Shelf Offering, which selection shall be reasonably acceptable to the Company.
(g) Other Registration Rights. The Company represents and warrants that it is not a party to, or otherwise subject to, any agreement (other than as provided herein) granting registration rights to any other Person with respect to the equity securities of the Company. Except as provided in this Agreement, the Company will not grant to any Person the right to request the Company or any Subsidiary to register any equity securities of the Company or any Subsidiary, or any securities convertible or exchangeable into or exercisable for such securities, without the prior written consent of the Holder, which consent shall not be unreasonably withheld, conditioned or delayed.
(h) Revocation of Demand Notice or Shelf Offering Notice. At any time prior to the effective date of the registration statement relating to a Demand Registration or the “pricing” of any offering relating to a Shelf Offering Notice, the Holder may revoke such notice of a Demand Registration or Shelf Offering Notice by providing written notice to the Company and such revoked Demand Registration or Shelf Offering Notice shall not count as one of the permitted Demand Registrations or Shelf Offering Notices hereunder so long as notice thereof occurs prior to the filing of the applicable registration statement.
(i) Confidentiality. The Holder agrees to treat as confidential the receipt of any notice hereunder (including notice of a Demand Registration, a Shelf Offering Notice and a Suspension Notice) and the information contained therein, and not to disclose or use the information contained in any such notice (or the existence thereof) without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally (other than as a result of disclosure by the Holder in breach of the terms of this Agreement).
Section 2 Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its equity securities under the Securities Act (including primary and secondary registrations, and other than pursuant to an Excluded Registration) **** (a “Piggyback Registration”), the Company will give prompt written notice (and in any event within five (5) Business Days after the public filing of the registration statement relating to the Piggyback Registration) to the Holder of its intention to effect such Piggyback Registration and, subject to the terms of Section 2(b) and Section 2(c), will include in such Piggyback Registration (and in all related registrations or qualifications under blue sky laws and in any related underwriting) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within three (3) Business Days after delivery of the Company’s notice. The Holder shall have the right to withdraw all or a part of its notice by giving written notice to the Company of such withdrawal at least five (5) Business Days prior to
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the earlier of (i) effectiveness of the applicable registration statement or (ii) commencement of any roadshow or other formal marketing relating to the registration statement for such Piggyback Registration. For certainty, the Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.
(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their reasonable and good faith opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, the Company will include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration which, in the reasonable and good faith opinion of the underwriters, can be sold without any such adverse effect (pro-rata among the Holder and any Permitted Assignees who have become parties to this Agreement), and (iii) third, other securities requested to be included in such registration which, in the reasonable and good faith opinion of the underwriters, can be sold without any such adverse effect.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s equity securities (other than pursuant to Section 1 hereof), and the managing underwriters advise the Company in writing that in their reasonable and good faith opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders initially requesting such registration, (ii) second, the Registrable Securities requested to be included in such registration, pro-rata among the Holder and any Permitted Assignees based upon the number of Registrable Securities owned by the Holder and each such Permitted Assignee that, in the reasonable and good faith opinion of the underwriters, can be sold without any such adverse effect, and (iii) third, other securities requested to be included in such registration which, in the reasonable and good faith opinion of the underwriters, can be sold without any such adverse effect.
(d) Right to Terminate Registration. The Company will have the right to terminate or withdraw any registration initiated by it under this Section 2, whether or not any holder of Registrable Securities has elected to include securities in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an underwritten offering, then the selection of investment banker(s) and manager(s) for the offering must be approved by the Holder, which approval shall not be unreasonably withheld, conditioned or delayed.
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Section 3 Stockholder Lock-Up Agreements and Company Holdback Agreement.
(a) Stockholder Lock-up Agreements. In connection with any underwritten Public Offering, the Holder will enter into any lock-up, holdback or similar agreements requested by the underwriter(s) managing such offering, in each case with such modifications and exceptions as may be reasonably approved by the Holder. Without limiting the generality of the foregoing, the Holder hereby agrees that in connection with any Demand Registration, Shelf Offering or Piggyback Registration that is an underwritten Public Offering, not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act) (collectively, “Securities”) by the Holder, or any other securities so owned convertible into or exchangeable or exercisable for Securities (collectively, “Other Securities”), (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences or ownership of any Securities or Other Securities, whether such transaction is to be settled by delivery of such Securities or Other Securities, in cash or otherwise (each of (i) and (ii) above, a “Sale Transaction”), or (iii) publicly disclose the intention to enter into any Sale Transaction, commencing on the date on which the Company gives notice to the Holder that a preliminary prospectus has been circulated for such underwritten Public Offering or the “pricing” of such offering and continuing to the date that is 90 days following the date of the final prospectus or prospectus supplement, as applicable, in the case of any underwritten Public Offering (such period, or such shorter period as agreed to by the managing underwriters, a “Holdback Period”), in each case with such modifications and exceptions as may be approved by the Holder, which approval shall not be unreasonably withheld, conditioned or delayed. The Company may impose stop-transfer instructions with respect to any Securities or Other Securities subject to the restrictions set forth in this Section 3(a) until the end of such Holdback Period. The Holder subject to the restrictions of this Section 3(a) shall receive the benefit of any shorter “lock-up” period or permitted exceptions agreed to by the managing underwriter(s) for any underwritten offering pursuant to this Agreement.
(b) Company Holdback Agreement. The Company (i) will not file any registration statement for a Public Offering or cause any such registration statement to become effective, or effect any public sale or distribution of its Securities or Other Securities during any Holdback Period (other than as part of such underwritten Public Offering, or a registration on Form S-4 or Form S-8 or any successor or similar form which is (x) then in effect or (y) shall become effective upon the conversion, exchange or exercise of any then outstanding Other Securities) and (ii) will cause each holder of Securities and Other Securities (including each of its directors and executive officers) to agree not to effect any Sale Transaction during any Holdback Period, except as part of such underwritten registration (if otherwise permitted), unless approved in writing by the Holder and the underwriters managing the Public Offering and to enter into any lock-up, holdback or similar agreements requested by the underwriter(s) managing such offering, in each case with such modifications and exceptions as may be approved by the Holder.
Section 4 Registration Procedures.
(a) Company Obligations. Whenever the Holder has requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a Shelf Offering, the Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
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(i) prepare and file with the SEC a registration statement, and all amendments and supplements thereto and related prospectuses, with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective, all in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Holder covered by such registration statement copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel);
(ii) notify the Holder, if it holds Registrable Securities registered by a registration statement, of (A) the issuance by the SEC of any stop order suspending the effectiveness of any such registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Company or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each such registration statement filed hereunder;
(iii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with the sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(iv) furnish, without charge, to each seller of Registrable Securities thereunder and each underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) (in each case including all exhibits and documents incorporated by reference therein), each amendment and supplement thereto, each Free Writing Prospectus and such other documents as such seller or underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable laws of each such registration statement, each such amendment and supplement thereto, and each such prospectus (or preliminary prospectus or supplement thereto) or Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
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(v) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (B) consent to general service of process in any such jurisdiction or (C) subject itself to taxation in any such jurisdiction);
(vi) notify in writing each seller of such Registrable Securities and provide copies thereof (if applicable) (A) promptly after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (B) promptly after receipt thereof, of any request by or comments from the SEC or any state security authorities for the amendment or supplementing of such registration statement or prospectus or for additional information, and (C) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event or of any information or circumstances as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, subject to Section 1(e), if required by applicable law or to the extent requested by the Holder, the Company will use its reasonable best efforts to promptly prepare and file a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading and (D) if at any time the representations and warranties of the Company in any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct;
(vii) (A) use reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA, and (B) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including without limitation all corporate governance requirements;
(viii) provide a transfer agent and registrar for all such Registrable Securities and a CUSIP number for all such Registrable Securities, not later than the effective date of such registration statement;
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(ix) enter into and perform such customary agreements (including, as applicable, underwriting agreements in customary form) and take all such other reasonable actions as the Holder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making available the executive officers of the Company and participating in “road shows,” investor presentations, marketing events and other selling efforts and effecting a stock or unit split or combination, recapitalization or reorganization);
(x) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition or sale pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company as will be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and the disposition of such Registrable Securities pursuant thereto;
(xi) take all reasonable actions to ensure that any Free Writing Prospectus utilized in connection with any Demand Registration or Piggyback Registration or Shelf Offering hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(xii) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) permit the Holder if, in its sole and exclusive judgment, it might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to allow the Holder to provide language for insertion therein, in form and substance satisfactory to the Company, which in the reasonable judgment of the Holder and its counsel should be included;
(xiv) use reasonable best efforts to (A) make Short-Form Registration available for the sale of Registrable Securities and (B) prevent the issuance of any stop order suspending the effectiveness of a registration statement, or the issuance of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, and use, in the event any such order is issued, reasonable best efforts to obtain promptly the withdrawal of such order;
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(xv) use its reasonable best efforts to **** cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(xvi) cooperate with the Holder covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, or the removal of any restrictive legends associated with any account at which such securities are held, and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or the Holder may request;
(xvii) if requested by any managing underwriter, include in any prospectus or prospectus supplement updated financial or business information for the Company’s most recent period or current quarterly period (including estimated results or ranges of results) if required for purposes of marketing the offering in the view of the managing underwriter;
(xviii) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company, the Company will take such action as is necessary to make any such prohibition inapplicable;
(xix) (A) cooperate with the Holder covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with the preparation and filing of applications, notices, registrations and responses to requests for additional information with FINRA, the New York Stock Exchange, Nasdaq or any other national securities exchange on which the Common Stock is or is to be listed, and (B) to the extent required by the rules and regulations of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter;
(xx) in the case of any underwritten offering, **** use its reasonable best efforts to obtain, and deliver to the underwriter(s), in the manner and to the extent provided for in the applicable underwriting agreement, one or more cold comfort letters from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters;
(xxi) use its reasonable best efforts to provide (A) a legal opinion of the Company’s outside counsel dated the effective date of such registration statement addressed to the Company addressing the validity of the Registrable Securities being offered thereby, (B) on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a Demand Registration or Shelf Offering, if such securities are being sold through underwriters, or, if such securities are not being sold
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through underwriters, on the closing date of the applicable sale, (1) one or more legal opinions of the Company’s outside counsel, dated such date, in form and substance as customarily given to underwriters in an underwritten public offering or, in the case of a non-underwritten offering, to the broker, placement agent or other agent of the Holder assisting in the sale of the Registrable Securities and (2) one or more “negative assurances letters” of the Company’s outside counsel, dated such date, in form and substance as is customarily given to underwriters in an underwritten public offering or, in the case of a non-underwritten offering, to the broker, placement agent or other agent of the Holder assisting in the sale of the Registrable Securities, in each case, addressed to the underwriters, if any, or, if requested, in the case of a non-underwritten offering, to the broker, placement agent or other agent of the Holder assisting in the sale of the Registrable Securities and (C) customary certificates executed by authorized officers of the Company as may be requested by the Holder or any underwriter of such Registrable Securities;
(xxii) if the Company files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(xxiii) if the Company does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and
(xxiv) if the Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its reasonable best efforts to refile the Shelf Registration Statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be kept effective.
(b) [Reserved.]
(c) Automatic Shelf Registration Statements. If the Company files any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities other than the Holder, and the Holder does not request that its Registrable Securities be included in such Shelf Registration Statement, the Company agrees that, at the request of the Holder, it will include in such Automatic Shelf Registration Statement such disclosures as may be required by Rule 430B in order to ensure that the Holder may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment. If the Company has filed any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities other than the Holder, the Company shall, at the request of the Holder, file any post-effective amendments necessary to include therein all disclosure and language necessary to ensure that the holders of Registrable Securities may be added to such Shelf Registration Statement.
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(d) Additional Information. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing, as a condition to such seller’s participation in such registration.
(e) In-Kind Distributions. If the Holder (and/or any of its Affiliates) seeks to effectuate an in-kind distribution of all or part of its Registrable Securities to its direct or indirect equityholders, the Company will, subject to any applicable lock-ups, work with the foregoing Persons to facilitate such in-kind distribution in the manner reasonably requested and consistent with the Company’s obligations under the Securities Act.
(f) Suspended Distributions. Each Person participating in a registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(a)(vi), such Person will immediately discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by Section 4(a)(vi), subject to the Company’s compliance with its obligations under Section 4(a)(vi).
(g) Other. To the extent that the Holder is or may be deemed to be an “underwriter” of Registrable Securities pursuant to any SEC comments or policies, the Company agrees that (i) the indemnification and contribution provisions contained in Section 6 shall be applicable to the benefit of the Holder in its role as an underwriter or deemed underwriter in addition to its capacity as a holder and (ii) the Holder shall be entitled to conduct the due diligence which it would normally conduct in connection with an offering of securities registered under the Securities Act, including without limitation receipt of customary opinions and comfort letters addressed to the Holder.
Section 5 Registration Expenses. Except as expressly provided herein, all out-of-pocket expenses incurred by the Company in connection with the performance of or compliance with this Agreement and/or in connection with any Demand Registration, Piggyback Registration or Shelf Offering, whether or not the same shall become effective or be consummated, shall be paid by the Company, including, without limitation: (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance with any securities or “blue sky” laws, (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company or other depositary and of printing prospectuses and Free Writing Prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants of the Company (including the expenses of any special audit and cold comfort letters required by or incident to such performance), (v) Securities Act liability insurance or similar insurance if the Company so desires or the underwriters so require in accordance with then-customary underwriting practice, (vi) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed, (vii) all applicable rating agency fees with respect to the Registrable Securities, (viii) all reasonable fees and disbursements of one legal counsel for the Holder and any Permitted Assignees, collectively, in each case selected by the Holder and/or such Permitted Assignees, as applicable, together with any necessary local counsel as may be
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required by the Holder or the managing underwriters, (ix) any fees and disbursements of underwriters customarily paid by issuers of securities, (x) all fees and expenses of any special experts or other Persons retained by the Company in connection with any Demand Registration, Piggyback Registration or Shelf Offering, and (xi) all of the Company’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties). All such expenses are referred to herein as “Registration Expenses.” The Company shall not be required to pay, and each Person that sells securities pursuant to a Demand Registration, Shelf Offering or Piggyback Registration hereunder will bear and pay, all underwriting discounts and commissions applicable to the Registrable Securities sold for such Person’s account and all transfer taxes (if any) attributable to the sale of Registrable Securities.
Section 6 Indemnification and Contribution.
(a) By the Company. The Company will indemnify and hold harmless, to the fullest extent permitted by law and without limitation as to time, the Holder, the Holder’s officers, directors, employees, agents, fiduciaries, stockholders, managers, partners, members, affiliates, direct and indirect equityholders, consultants and representatives, and any successors and assigns thereof, and each Person who controls the Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) against all losses, claims, actions, damages, liabilities and expenses (including with respect to actions or proceedings, whether commenced or threatened, and including reasonable attorney fees and expenses) (collectively, “Losses”) caused by, resulting from, arising out of, based upon or related to any of the following (each, a “Violation”) by the Company: (i) any untrue or alleged untrue statement of material fact contained in (A) any registration statement, prospectus, preliminary prospectus or Free Writing Prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or communication (in this Section 6, collectively called an “application”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or securities laws thereof, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance. In addition, the Company will reimburse such Indemnified Party for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Losses. Notwithstanding the foregoing, the Company will not be liable in any such case to the extent that any such Losses result from, arise out of, are based upon, or relate to an untrue statement, or omission, made in such registration statement, any such prospectus, preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished in writing to the Company by such Indemnified Party expressly for use therein or by such Indemnified Party’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Indemnified Party with a sufficient number of copies of the same. In connection with an underwritten offering, the Company will indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Indemnified Parties or as otherwise agreed to in the underwriting agreement executed in connection with such underwritten offering. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of such securities by such seller.
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(b) By Holder. In connection with any registration statement in which the Holder is participating, the Holder will furnish to the Company in writing such information regarding the Holder as the Company reasonably requests for use in connection with any such registration statement, prospectus or prospectus supplement and, to the extent permitted by law, will indemnify the Company, its officers, directors, employees, agents and representatives, and each Person who controls the Company (within the meaning of the Securities Act) against any Losses resulting from (as determined by a final and appealable judgment, order or decree of a court of competent jurisdiction) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information so furnished in writing by the Holder expressly for use therein; provided, that the obligation to indemnify will be individual, not joint and several, for the Holder and each Permitted Assignee, and each such Person’s liability pursuant to the indemnification and contribution provisions herein will be limited to the net amount of proceeds received by such Person from the sale of Registrable Securities pursuant to such registration statement.
(c) Claim Procedure. Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice will impair any Person’s right to indemnification hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicted indemnified parties will have a right to retain one separate counsel, chosen by the majority of the conflicted indemnified parties involved in the indemnification and approved by the Holder and/or Permitted Assignees, as the case may be, at the expense of the indemnifying party, which approval shall not be unreasonably withheld, conditioned or delayed.
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(d) Contribution. If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to, or is insufficient to hold harmless, an indemnified party or is otherwise unenforceable with respect to any Loss referred to herein, then such indemnifying party will contribute to the amounts paid or payable by such indemnified party as a result of such Loss, (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other hand in connection with the statements or omissions which resulted in such Loss as well as any other relevant equitable considerations or (ii) if the allocation provided by clause (i) of this Section 6(d) is not permitted by applicable law, then in such proportion as is appropriate to reflect not only such relative fault but also the relative benefit of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other in connection with the statement or omissions which resulted in such Losses, as well as any other relevant equitable considerations; provided that the maximum amount of liability in respect of the indemnification and contribution provisions herein will be limited, in the case of each seller of Registrable Securities, to an amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified party will be determined by reference to, among other things, whether the untrue (or, as applicable alleged) untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just or equitable if the contribution pursuant to this Section 6(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account such equitable considerations. The amount paid or payable by an indemnified party as a result of the Losses referred to herein will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject hereof. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
(e) Indemnification Priority. The Company hereby acknowledges and agrees that any of the Persons entitled to indemnification and contribution pursuant to this Section 6 (each, a “Company Indemnitee” and collectively, the “Company Indemnitees”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by other sources. The Company hereby acknowledges and agrees (i) that it is the indemnitor of first resort (i.e., its obligations to a Company Indemnitee are primary and any obligation of such other sources to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Company Indemnitee are secondary) and (ii) that it shall be required to advance the full amount of expenses incurred by a Company Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement without regard to any rights a Company Indemnitee may have against such other sources. The Company further agrees that no advancement or payment by such other sources on behalf of a Company Indemnitee with respect to any claim for which such Company Indemnitee has sought indemnification, advancement of expenses or insurance from the Company shall affect the foregoing, and that such other sources shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Company Indemnitee against the Company.
(f) Release. No indemnifying party will, except with the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
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(g) Non-exclusive Remedy; Survival. The indemnification and contribution provided for under this Agreement will be in addition to any other rights to indemnification or contribution that any indemnified party may have pursuant to law or contract (and the Company and its Subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this Section 6 applies) and will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of Registrable Securities and the termination or expiration of this Agreement.
Section 7 Cooperation with Underwritten Offerings. No Person may participate in any underwritten registration hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option requested by the underwriters; provided that the Holder will not be required to sell more than the number of Registrable Securities the Holder has requested to include in such registration) and (ii) completes, executes and delivers all questionnaires, powers of attorney, stock powers, custody agreements, indemnities, underwriting agreements and other documents and agreements required under the terms of such underwriting arrangements or as may be reasonably requested by the Company and the lead managing underwriter(s); provided, that, prior to excluding such Person on the basis of its failure to provide such requested information, the Company must furnish in writing a reminder to such Person requesting such information at least three (3) Business Days prior to filing the applicable registration statement. To the extent that any such agreement is entered into pursuant to, and consistent with, Section 3, Section 4 and/or this Section 7, the respective rights and obligations created under such agreement will supersede the respective rights and obligations of the Holder, the Company and the underwriters created thereby with respect to such registration.
Section 8 Subsidiary Public Offering. If, after an initial Public Offering of the common equity securities of one of its Subsidiaries, the Company distributes securities of such Subsidiary to its equityholders, then the rights and obligations of the Company pursuant to this Agreement will apply, mutatis mutandis, to such Subsidiary, and the Company will cause such Subsidiary to comply with such Subsidiary’s obligations under this Agreement as if it were the Company hereunder.
Section 9 [Reserved.]
Section 10 Synthetic Secondary Offerings. If the Holder elects to conduct an offering of Registrable Securities pursuant to this Agreement, the Company or the Holder, in each of their discretion, may elect to conduct a synthetic secondary offering with respect to such Registrable Securities (i.e., an offering in which the Company sells Common Stock for its own account and uses the net proceeds of such offering to acquire an equal number of Registrable Securities from the Holder that has elected to conduct an offering). In such case, the Common Stock sold by the Company for its own account shall be treated the same as Registrable Securities being offered by the Holder for purposes of Sections 1(e), 2(b) and 2(c) and other related provisions of this Agreement.
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Section 11 General Provisions.
(a) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Company and the Holder. The failure or delay of any Person to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such Person thereafter to enforce each and every provision of this Agreement in accordance with its terms. A waiver or consent to or of any breach or default by any Person in the performance by that Person of his, her or its obligations under this Agreement will not be deemed to be a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement.
(b) Remedies. The parties to this Agreement will be entitled to enforce their rights under this Agreement specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm and money damages would not be an adequate remedy for any such breach and that, in addition to any other rights and remedies existing hereunder, any party will be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.
(c) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under any applicable law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction or in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been contained herein.
(d) Entire Agreement. Except as otherwise provided herein, this Agreement contains the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties hereto, written or oral, which may have related to the subject matter hereof in any way.
(e) Successors, Assigns and Transferees. Except as otherwise provided herein, this Agreement will bind and inure to the benefit and be enforceable by the Company and its successors and permitted assigns. The rights and obligations of the Holder may not be assigned, in whole or in part; provided, however, that the rights and obligations set forth herein may be assigned, in whole or in part, by the Holder to any of its Affiliates, or to any transferee of Registrable Securities that holds (after giving effect to such transfer) in excess of five percent (5%) of the then-outstanding Common Stock, and such transferee shall, with the consent of the Holder, be treated
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as a Holder for all purposes of this Agreement (each Person to whom the rights and obligations are assigned in compliance with this Section 11(e) is a “Permitted Assignee” and all such Persons, collectively, are “Permitted Assignees”); provided, further, that any such transferee shall only be admitted as a party hereunder upon its, his or her execution and delivery of an executed Joinder to this Agreement from such transferee in the form of Exhibit B attached hereto (a “Joinder”), agreeing to be bound by the terms and conditions of this Agreement as if such Person were a party hereto, whereupon such Person will be treated as the Holder for all purposes of this Agreement, with the same rights, benefits and obligations hereunder as the Holder with respect to the transferred Registrable Securities.
(f) Notices. Any notice, demand or other communication to be given under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (i) when delivered personally to the recipient, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; but if not, then on the next Business Day, (iii) one Business Day after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three Business Days after it is mailed to the recipient by first class mail, return receipt requested. Such notices, demands and other communications will be sent to the Company at the address specified on the signature page hereto or any Joinder and to the Holder (and any Permitted Assignee that has become a party hereto), or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Any party may change such party’s address for receipt of notice by giving prior written notice of the change to the sending party as provided herein. The Company’s address is:
Kelly Services, Inc.
999 West Big Beaver Road
Troy, Michigan 48084
Attn: Vanessa Williams
Email: vanessa.williams@kellyservices.com
With a copy to:
Nelson Mullins Riley & Scarborough LLP
101 Constitution Avenue NW, Suite 900
Washington, DC 20001
| Attn: | Michael K. Bradshaw, Jr. |
|---|---|
| Gary M. Brown | |
| --- | |
| Email: | mike.bradshaw@nelsonmullins.com |
| --- | --- |
| gary.brown@nelsonmullins.com | |
| --- |
or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Any request or consent made under this Agreement must be in writing (electronic mail will suffice).
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(g) Business Days. If any time period for giving notice or taking action hereunder expires on a day that is not a Business Day, the time period will automatically be extended to the Business Day immediately following such Saturday, Sunday or legal holiday.
(h) Governing Law. The corporate law of the State of Delaware will govern all issues and questions concerning the relative rights of the Company and its equityholders. All issues and questions concerning the construction, validity, interpretation and enforcement of this Agreement and the exhibits and schedules hereto will be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
(i) MUTUAL WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
(j) CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH ABOVE WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS PARAGRAPH. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(k) No Recourse. Notwithstanding anything to the contrary in this Agreement, the Company and the Holder agree and acknowledge that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement will be had against any current or future director, officer, employee, general or limited partner or member of the Holder or any Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever will attach to, be imposed
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on or otherwise be incurred by any current or future officer, agent or employee of the Holder or any current or future member of the Holder or any current or future director, officer, employee, partner or member of the Holder or of any Affiliate or assignee thereof, as such for any obligation of the Holder under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
(l) Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” in this Agreement will be by way of example rather than by limitation.
(m) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.
(n) Counterparts. This Agreement may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together will constitute one and the same agreement.
(o) Electronic Delivery. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by means of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile machine or electronic mail will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto will re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
(p) Further Assurances. In connection with this Agreement and the transactions contemplated hereby, the Holder agrees to execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby.
(q) Dividends, Recapitalizations, Etc. If at any time or from time to time there is any change in the capital structure of the Company by way of a stock split, stock dividend, distribution, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment will be made in the provisions hereof so that the rights and privileges granted hereby will continue.
(r) No Third-Party Beneficiaries. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any Person not a party hereto, and no such other Person shall have any right or cause of action hereunder, except as otherwise expressly provided herein.
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(s) Current Public Information. The Company will file all reports required to be filed by it under the Securities Act and the Exchange Act and will take such further action as the Holder may reasonably request, all to the extent required to enable the Holder to sell Registrable Securities (or securities that would be Registrable Securities but for the final sentence of the definition of Registrable Securities) pursuant to Rule 144.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
| KELLY SERVICES, INC. | |
|---|---|
| By: | /s/ Christopher D. Layden |
| Name: | Christopher D. Layden |
| Title: | Chief Executive Officer |
| HOLDER: | |
| HUNT EQUITY OPPORTUNITIES, LLC | |
| By: HEO Finance, LLC, its Sole Member | |
| By: Hunt ELP, Ltd., its Sole Member | |
| By: | /s/ Ryan McCrory |
| Name: | Ryan McCrory |
| Title: | President |
[Signature Page to Registration Rights Agreement]
EXHIBIT A
DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below.
“Affiliate” of any Person means any other Person controlled by, controlling or under common control with such Person; provided, however, that portfolio companies in which any Person or any of its Affiliates has an investment shall not be deemed an Affiliate of such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) when used with respect to any Person, means the possession, directly or indirectly, of the power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the recitals.
“Automatic Shelf Registration Statement” has the meaning set forth in Section 1(a).
“Business Day” means a day that is not a Saturday or Sunday or a day on which banks in New York City are closed.
“Class A Common Stock” means shares of the Company’s Class A common stock, $1.00 par value per share.
“Class B Common Stock” means shares of the Company’s Class B common stock, $1.00 par value per share.
“Common Stock” means the Class A Common Stock and the Class B Common Stock.
“Company” has the meaning set forth in the preamble and shall include its successor(s) by merger, acquisition, reorganization or otherwise.
“Company Indemnitee” has the meaning set forth in Section 6.
“Demand Registrations” has the meaning set forth in Section 1(a).
“End of Suspension Notice” has the meaning set forth in Section 1(e)(ii).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
“Excluded Registration” means any registration (i) pursuant to a Demand Registration (which is addressed in Section 1(a)), (ii) in connection with registrations on Form S-4 or S-8 promulgated by the SEC (or any successor or similar forms) or (iii) on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities or that does not permit the registration of Registrable Securities.
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“FINRA” means the Financial Industry Regulatory Authority.
“Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405.
“Holdback Period” has the meaning set forth in Section 3(a).
“Holder” has the meaning set forth in the preamble; provided, however, the term “Holder”, when used in this Agreement, shall include, on a collective basis: (i) any person executing a Joinder pursuant to Section 9; and (ii) all Permitted Assignees who have executed a Joinder.
“Indemnified Parties” has the meaning set forth in Section 6(a).
“Joinder” has the meaning set forth in Section 11.
“Long-Form Registrations” has the meaning set forth in Section 1(a).
“Losses” has the meaning set forth in Section 6(a).
“Other Securities” has the meaning set forth in Section 3(a).
“Permitted Assignee” has the meaning set forth in Section 11(e).
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
“Piggyback Registrations” has the meaning set forth in Section 2(a).
“Public Offering” means any sale or distribution by the Company, one of its Subsidiaries and/or the Holder to the public of Common Stock or other securities convertible into or exchangeable for Common Stock pursuant to an offering registered under the Securities Act.
“Qualified Independent Underwriter” has the meaning set forth by FINRA in Section 5121(f)(12), or any successor provision thereto.
“Registrable Securities” means (i) any shares of Common Stock held (directly or indirectly) by the Holder, and (ii) any other securities issued or issuable with respect to the foregoing by way of stock dividend, distribution, split or combination of securities, conversion, exchange, or any recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when (a) they have been sold or distributed pursuant to a Public Offering, (b) they have been sold in compliance with Rule 144, (c) they have been distributed to the direct or indirect partners or members of the Holder, except for a distribution or assignment permitted pursuant to Section 4(e) or (d) they have been repurchased by the Company or a Subsidiary of the Company. For purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities, and the Registrable Securities will be deemed to be in existence, whenever such Person has the right to acquire, directly or indirectly, such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether
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or not such acquisition has actually been effected, and such Person will be entitled to exercise the rights of a holder of Registrable Securities hereunder (it being understood that a holder of Registrable Securities may only request that Registrable Securities in the form of Common Stock be registered pursuant to this Agreement). Notwithstanding the foregoing, any Registrable Securities held by any Person (other than the Holder or its Affiliates) **** that may be sold under Rule 144(b)(1)(i) without limitation under any of the other requirements of Rule 144 will be deemed not to be Registrable Securities.
“Registration Expenses” has the meaning set forth in Section 5.
“Rule 144”, “Rule 158”, “Rule 405”, “Rule 415”, “Rule 430B” and “Rule 462” mean, in each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the same will be amended from time to time, or any successor rule then in force.
“Sale Transaction” has the meaning set forth in Section 3(a).
“SEC” means the United States Securities and Exchange Commission.
“Securities” has the meaning set forth in Section 3(a).
“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
“Shelf Offering” has the meaning set forth in Section 1(c)(i).
“Shelf Offering Notice” has the meaning set forth in Section 1(c)(i).
“Shelf Registration” has the meaning set forth in Section 1(a).
“Shelf Registrable Securities” has the meaning set forth in Section 1(c)(i).
“Shelf Registration Statement” has the meaning set forth in Section 1(c).
“Short-Form Registrations” has the meaning set forth in Section 1(a).
“Subsidiary” means, with respect to the Company, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the limited liability company, partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more Subsidiaries of the Company or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons will be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or will be or control the managing director or general partner of such limited liability company, partnership, association or other business entity.
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“Suspension Event” has the meaning set forth in Section 1(e)(ii).
“Suspension Notice” has the meaning set forth in Section 1(e)(ii).
“Suspension Period” has the meaning set forth in Section 1(e)(i).
“Underwritten Block Trade” has the meaning set forth in Section 1(c)(ii).
“Violation” has the meaning set forth in Section 6(a).
“WKSI” means a “well-known seasoned issuer” as defined under Rule 405.
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EXHIBIT B
JOINDER TO REGISTRATION RIGHTS AGREEMENT
The undersigned is executing and delivering this Joinder pursuant to the Registration Rights Agreement dated as of January 30, 2026 (as amended, modified and waived from time to time, the “Registration Agreement”), among Kelly Services, Inc., a Delaware **** corporation (the “Company”), and the other persons named as parties therein (including pursuant to other Joinders). Capitalized terms used herein have the meaning set forth in the Registration Agreement.
By executing and delivering this Joinder to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of, the Registration Agreement as a Holder in the same manner as if the undersigned were an original signatory to the Registration Agreement, and the undersigned will be deemed for all purposes to be a Holder, and the undersigned’s shares of Class A Common Stock and/or Class B Common Stock of the Company, as specified on the signature page hereto (together with any securities issued or issuable with respect thereto by way of stock dividend, distribution, split, combination, conversion, exchange, recapitalization or otherwise), will be deemed for all purposes to be Registrable Securities under the Registration Agreement.
Accordingly, the undersigned has executed and delivered this Joinder as of the ___ day of ____________, 202___.
| Signature | |
|---|---|
| Print Name | |
| Class A Common Stock: _________ shares | |
| Class B Common Stock: _________ shares | |
| Address: | |
| Agreed and Accepted as of | |
| --- | --- |
| ________________, 202_: | |
| KELLY SERVICES, INC. | |
| By: | |
| Name: | |
| Title: |
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EX-10.3
Exhibit 10.3
Execution Copy
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), made and entered into as of January 28, 2026, among KELLY SERVICES, INC., a Delaware corporation (the “Company” or the “Borrower”), the SUBSIDIARY GUARANTORS set forth on the signature pages hereof, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
RECITALS:
A. The Loan Parties, the Lenders and the Administrative Agent are parties to that certain Third Amended and Restated Credit Agreement dated as of December 5, 2019, as amended by a First Amendment to Third Amended and Restated Credit Agreement dated as of November 4, 2022 and as amended by a Second Amendment to Third Amended and Restated Credit Agreement dated as of November 2, 2023 (as now and hereafter amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Credit Agreement, unless the context otherwise requires.
B. The Company has requested that the Administrative Agent and the Lenders amend and modify certain terms and provisions of the Credit Agreement, and the Administrative Agent and the Lenders have agreed to do so amend and modify the Credit Agreement, in each case upon the terms and subject to the conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the parties hereto agree as follows:
ARTICLE I - RECITALS INCORPORATED
The parties hereto agree that the Recitals set forth herein are true and correct in all material respects and are incorporated herein by reference, and agree to undertake the actions hereinafter set forth.
ARTICLE II - AMENDMENTS
Upon the Fourth Amendment Effective Date (as defined below), the Credit Agreement shall be amended as follows:
2.1 The following definitions in Section 1.1 of the Credit Agreement are amended and restated as follows:
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 25% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise; provided that, prior to the consummation of the Permitted Holder Acquisition, neither the Kelly Trust nor any member of the Kelly Family shall be an “Affiliate” for purposes of this definition.
“Change in Control” means, subject to the exceptions contained in the next sentence, any Person or group of Persons (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall after the Third Amendment Effective Date either (a) acquire beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) in excess of 50% of the outstanding shares of voting stock of the Company or (b) obtain the power (whether or not exercised) to elect a majority of the Company’s directors. A Change in Control shall not include any acquisition of beneficial ownership (as defined above) or the power to elect a majority of the Company’s directors by (i) prior to the consummation of the Permitted Holder Acquisition, any Person who is, or group of Persons (as defined above) which includes, a member of the Kelly Family or who is or are acting for the benefit of any member of the Kelly Family, nor shall Change in Control include any change in legal title to, or any trustee of, the Kelly Trust or the admission within or to, or withdrawal from, the Kelly Trust of any beneficiary and (ii) on or after the consummation of the Permitted Holder Acquisition, any Permitted Holder.
2.2 The following definitions are added to Section 1.1 of the Credit Agreement:
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Permitted Holders” means (a) Hunt Companies, Inc., a Delaware corporation (“Hunt”) and (b) any other entity that is directly or indirectly majority owned and Controlled by Hunt.
“Permitted Holder Acquisition” means a Permitted Holder (a) acquires from the Kelly Trust beneficial ownership in excess of 50% of the outstanding shares of voting stock of the Company or (b) obtains the power to elect a majority of the Company’s directors.
ARTICLE III - MISCELLANEOUS
3.1 Effectiveness of Amendment. At or prior to the execution of this Amendment, and as a condition precedent to the effectiveness of this Amendment, the Loan Parties shall have satisfied the following conditions and delivered or caused to be delivered to the Administrative Agent the following documents and items each dated such date (as applicable) and in form and substance satisfactory to the Administrative Agent and duly executed by all appropriate parties (as applicable) and this Amendment shall become effective as of the date specified in the first paragraph hereof when each of the following conditions is satisfied or waived (the “Fourth Amendment Effective Date”):
(a) The Loan Parties, the Required Lenders and the Administrative Agent shall have duly executed this Amendment.
(b) The Lenders and the Administrative Agent shall have received, substantially concurrently with the effectiveness hereof, all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and documented expenses of legal counsel to the Administrative Agent), on or before the Fourth Amendment Effective Date.
3.2 Representations; No Default. Each Loan Party hereby represents, on and as of the date hereof, and after giving effect to this Amendment, all of the representations and warranties contained in Article V of the Credit Agreement are true, correct, and complete in all material respects as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date and no Default has occurred and is continuing under the Credit Agreement. Each Loan Party further represents and warrants that (a) it has the power and legal right and authority to
2
enter into this Amendment, (b) it has duly authorized as appropriate the execution and delivery of this Amendment by proper corporate action, (c) this Amendment constitutes the legal, valid and binding obligations of it enforceable against it in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles affecting the availability of specific performance and other remedies, (d) neither the execution and delivery by it of this Amendment, nor the consummation of the transactions herein contemplated, nor compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on it or any of its Subsidiaries or its articles of incorporation, code of regulations or by-laws or, in any material respects, the provisions of any indenture, instrument or agreement to which it or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 6.13) in, of or on the Property of it or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement, and (e) no order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, this Amendment.
3.3 Affirmation; Further References. The Lenders and each Loan Party acknowledge and affirm that the Credit Agreement, including the Guaranty therein, as hereby amended, is hereby ratified and confirmed in all respects and all terms, conditions, and provisions of the Credit Agreement, except as amended by this Amendment, remain unmodified and in full force and effect. All references to the Credit Agreement in any other document or instrument to the Credit Agreement are hereby amended and refer to the Credit Agreement as amended by this Amendment. Each Loan Party hereby reaffirms all of its obligations under the Credit Agreement and other Loan Documents, as supplemented, modified and amended hereby.
3.4 Severability. Whenever possible, each provision of this Amendment and any other statement, instrument, or transaction contemplated hereby or thereby or relating hereto or thereto will be interpreted in such manner as to be effective, valid, and enforceable under the applicable law of any jurisdiction, but, if any provision of this Amendment, or any other statement, instrument, or transaction contemplated hereby or thereby or relating hereto or thereto will be held to be prohibited, invalid, or unenforceable under the applicable law, such provision will be ineffective in such jurisdiction only to the extent of such prohibition, invalidity, or unenforceability, without invalidating or rendering unenforceable the remainder of such provision or the remaining provisions of this Amendment or such other statement, instrument, or transaction in such jurisdiction, or affecting the effectiveness, validity, or enforceability of such provision in any other jurisdiction.
3.5 Successors. This Amendment is binding upon the Loan Parties, and their respective successors and assigns, and inure to the benefit of the Loan Parties, the Lenders, and to the successors and assigns of the Lenders.
3.6 Legal Expenses. Without limiting any provision of the Credit Agreement or any other Loan Documents, the Borrower agrees to pay and to save the Administrative Agent harmless for the payment of all costs and expenses arising in connection with this Amendment, including the reasonable and out-of-pocket fees of counsel to the Administrative Agent in connection with preparing this Amendment and the related documents.
3.7 Headings. The headings of various sections of this Amendment have been inserted for reference only and will not be deemed to be a part of this Amendment.
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3.8 Counterparts; Miscellaneous. This Amendment may be executed (as applicable) in several counterparts as deemed necessary or convenient, each of which, when so executed, will be deemed an original, provided that all such counterparts will be regarded as one and the same document, and any party to this Amendment may execute any such agreement by executing a counterpart of such agreement. Among other provisions of the Credit Agreement, this Amendment is subject to Sections 15.2, 16.1, 16.2 and 16.3.
3.9 No Waiver. Nothing contained in this Amendment or in any other agreement or understanding between the parties constitutes a waiver of, or otherwise diminishes or impairs, the Lenders’ rights or remedies under the Credit Agreement or any of the other Loan Documents, or under applicable law.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| KELLY SERVICES, INC. | |
|---|---|
| By: | /s/ Michael Orsini |
| Print Name: Michael Orsini | |
| Title: Treasurer | |
| KELLY PROPERTIES, LLC | |
| By: | /s/ Michael Orsini |
| Print Name: Michael Orsini | |
| Title: Treasurer | |
| KELLY OUTSOURCING AND CONSULTING GROUP AUSTRALIA, LTD., formerly known as Kelly Services (Australia), Ltd. | |
| By: | /s/ Michael Orsini |
| Print Name: Michael Orsini | |
| Title: Treasurer | |
| KELLY SERVICES GLOBAL, LLC | |
| By: | /s/ Michael Orsini |
| Print Name: Michael Orsini | |
| Title: Treasurer | |
| KELLY SERVICES USA, LLC | |
| By: | /s/ Michael Orsini |
| Print Name: Michael Orsini | |
| Title: Treasurer |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| MRP HOLDCO, INC. | |
|---|---|
| By: | /s/ Troy Anderson |
| Name: Troy Anderson | |
| Title: Vice President | |
| MOTION RECRUITMENT PARTNERS LLC | |
| By: | /s/ Troy Anderson |
| Name: Troy Anderson | |
| Title: Vice President |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, as Swing Line Lender, as the LC Issuer and as a Lender. | |
|---|---|
| By: | /s/ Kristin Jang |
| Print Name: Kristin Jang | |
| Title: Authorized Officer |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| PNC BANK, NATIONAL ASSOCIATION | |
|---|---|
| By: | /s/ Blake Arnett |
| Print Name: Blake Arnett | |
| Title: Senior Vice President |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| U.S. BANK NATIONAL ASSOCIATION | |
|---|---|
| By: | /s/ Tannah Zayed |
| Print Name: Tannah Zayed | |
| Title: Assistant Vice President |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| ROYAL BANK OF CANADA | |
|---|---|
| By: | /s/ Alisa Buttar |
| Print Name: Alisa Buttar | |
| Title: Director, CCG Finance |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| BANK OF AMERICA, N.A. | |
|---|---|
| By: | /s/ Amanda Ylvisaker |
| Print Name: Amanda Ylvisaker | |
| Title: Associate |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
| ING BANK N.V., DUBLIN BRANCH | |
|---|---|
| By: | /s/ Rory Fitzgerald |
| Print Name: Rory Fitzgerald | |
| Title: Director | |
| By: | /s/ Rosemary Healy |
| Print Name: Rosemary Healy | |
| Title: Director |
Signature Page to Kelly Services Fourth Amendment to Third Amended and Restated Credit Agreement
EX-10.4
Exhibit 10.4
FIRST AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AMENDMENT NO. 5
This FIRST AMENDED AND RESTATED **** RECEIVABLES PURCHASE AGREEMENT AMENDMENT NO. 5 (this “Amendment”), is dated as of January 27, 2026, among Kelly Receivables Funding, LLC, as seller (the “Seller”), Kelly Services, Inc., as servicer (the “Servicer”), PNC Bank, National Association (“PNC”), as a Related Committed Purchaser, as Purchaser Agent for the PNC Purchaser Group, as LC Bank (in such capacity, the “LC Bank”) and as an LC Participant (in such capacity, the “LC Participant”), and PNC Bank, National Association, as administrator for each Purchaser Group (in such capacity, the “Administrator”), to FIRST AMENDED AND RESTATED **** RECEIVABLES PURCHASE AGREEMENT, dated as of December 5, 2016, among Seller, Servicer, the various Purchasers and Purchaser Agents from time to time party thereto, LC Bank, LC Participant, and Administrator (as amended, restated, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”).
W I T N E S S E T H:
WHEREAS, the Seller desires to amend the Receivables Purchase Agreement to modify the terms thereof;
WHEREAS, the Purchaser Agents, Related Committed Purchasers, Conduit Purchaser, LC Bank, LC Participant, and Administrator agree to amend the Receivables Purchase Agreement pursuant to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged by the parties, the Seller, Servicer, Purchaser Agent, LC Bank, LC Participant, and Administrator hereto agree as follows:
Section 1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings given to them in the Receivables Purchase Agreement.
Section 2. Amendments to the Receivables Purchase Agreement. Effective as of the date hereof, and subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, the Receivables Purchase Agreement shall hereby be amended as follows:
2.1. The following defined terms appearing in Exhibit I to the Receivables Purchase Agreement are hereby amended and restated in their entireties and as so amended and restated shall read as follows:
“Affiliate” means, as to any Person: (a) any Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person, or (b) who is a director or officer: (i) of such Person or (ii) of any Person described in clause (a), except that, in the case of each Conduit Purchaser, Affiliate shall mean the holder of its capital stock or membership interest, as the case may
be; provided that, prior to the consummation of the Permitted Holder Acquisition, neither the Kelly Trust nor any member of the Kelly Family shall be an “Affiliate” for purposes of this definition. For purposes of this definition, control of a Person shall mean the power, direct or indirect: (x) to vote 25% or more of the securities having ordinary voting power for the election of directors of such Person, or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise.
“Change in Control” means (a) that Kelly ceases to own, directly or indirectly, (i) 100% of the membership interests of the Seller free and clear of all Adverse Claims or (ii) 100% of the voting stock of any Originator (other than Kelly) free and clear of all Adverse Claims (other than the pledge of any such interest therein of Kelly or any Originator solely pursuant to the Credit Agreement and the other “Loan Documents” (as such term is defined in the Credit Agreement), (b) subject to the exceptions contained in the next sentence, any Person or group of Persons (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall after the Closing Date either (i) acquire beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) in excess of 50% of the outstanding shares of voting stock of Kelly or (ii) obtain the power (whether or not exercised) to elect a majority of Kelly’s directors or (c) a “Change in Control” (as such term is defined in the Credit Agreement, without giving effect to any amendment, supplement, modification or waiver of such definition to which the Administrator, the LC Bank and each of the Majority LC Participants and Majority Purchaser Agents have not consented). A Change in Control shall not include any acquisition of beneficial ownership (as defined above) or the power to elect a majority of Kelly’s directors (i) prior to the consummation of the Permitted Holder Acquisition, by any Person who is, or group of Persons (as defined above) which includes, a member of the Kelly Family or who is or are acting for the benefit of any member of the Kelly Family, nor shall Change in Control include any change in legal title to, or any trustee of, the Kelly Trust or the admission within or to, or withdrawal from, the Kelly Trust of any beneficiary and (ii) on or after the consummation of the Permitted Holder Acquisition, any Permitted Holder.
2.2. The following defined terms are hereby added to Exhibit I of the Receivables Purchase Agreement, in alphabetical order
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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Permitted Holder” means (a) Hunt Companies, Inc., a Delaware corporation (“Hunt”) and (b) any other entity that is directly or indirectly majority owned and controlled by Hunt.
“Permitted Holder Acquisition” means a Permitted Holder (a) acquires from the Kelly Trust beneficial ownership in excess of 50% of the outstanding shares of voting stock of Kelly or (b) obtains the power to elect a majority of the Kelly’s directors.
Section 3. Representations of the Seller and Servicer. Each of Seller and Servicer hereby represent and warrant to the parties hereto that as of the date hereof each of the representations and warranties contained in Exhibit III of the Receivables Purchase Agreement and any other Transaction Documents to which it is a party are true and correct as of the date hereof and after giving effect to this Amendment (except to the extent that such representations and warranties expressly refer to an earlier date, in which case they are true and correct as of such earlier date).
Section 4. Conditions Precedent. This Amendment shall become effective and be deemed effective as of the date first written above upon the satisfaction of the following conditions precedent:
(a) Administrator shall have received a fully-executed counterpart of this Amendment;
(b) each representation and warranty of Seller and Servicer contained herein or in any other Transaction Document (after giving effect to this Amendment) shall be true and correct (except to the extent that such representations and warranties expressly refer to an earlier date, in which case they are true and correct as of such earlier date);
(c) no Termination Event, as set forth in Exhibit V of the Receivables Purchase Agreement, shall have occurred and be continuing.
Section 5. Amendment. The Seller, Servicer, the Purchaser Agents, the Related Committed Purchasers, the Conduit Purchasers (if any), the LC Bank, the LC Participants, and the Administrator hereby agree that the provisions and effectiveness of this Amendment shall apply to the Receivables Purchase Agreement as of the date hereof. Except as amended by this Amendment, the Receivables Purchase Agreement remains unchanged and in full force and effect. This Amendment is a Transaction Document.
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Section 6. Counterparts. This Amendment may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of a signature page to, or an executed counterpart of, this Amendment by facsimile, email transmission of a scanned image, or other electronic means, shall be effective as delivery of an originally executed counterpart. The parties hereto agree that “execution,” “signed,” “signature,” and words of like import in this document shall be deemed to include electronic signatures, authentication, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), or the Uniform Commercial Code, and the parties hereto hereby waive any objection to the contrary.
Section 7. Captions. The headings of the Sections of this Amendment are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions of this Amendment.
Section 8. Successors and Assigns. The terms of this Amendment shall be binding upon, and shall inure to the benefit of, Seller, Servicer, Purchaser Agents, Related Committed Purchasers, Conduit Purchaser, LC Bank, LC Participant, and Administrator **** and their respective successors and permitted assigns.
Section 9. Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10. Governing Law and Jurisdiction. The provisions of the Receivables Purchase Agreement with respect to governing law, jurisdiction, and agent for service of process are incorporated in this Amendment by reference as if such provisions were set forth herein.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to be duly executed by their respective duly authorized officers as of the day and year first above written.
| KELLY RECEIVABLES FUNDING, LLC, | |
|---|---|
| as Seller | |
| By: | /s/ Michael F. Orsini |
| Name: Michael F. Orsini | |
| Title: Vice President, Tax & Treasurer | |
| KELLY SERVICES, INC.,<br><br><br>as Servicer | |
| By: | /s/ Michael F. Orsini |
| Name: Michael F. Orsini | |
| Title: Vice President, Tax & Treasurer |
[Signature Page to
Amended and Restated Receivables Purchase Agreement Amendment No. 5]
| PNC BANK, NATIONAL ASSOCIATION,<br><br><br>as Administrator | |
|---|---|
| By: | /s/ Michael Ferragonio |
| Name: Michael Ferragonio | |
| Title: Senior Vice President | |
| PNC BANK, NATIONAL ASSOCIATION,<br><br><br>as Purchaser Agent for the PNC Bank Purchaser Group, as a Related Committed Purchaser, as the LC Bank and as an LC<br>Participant | |
| By: | /s/ Michael Ferragonio |
| Name: Michael Ferragonio | |
| Title: Senior Vice President |
[Signature Page to
Amended and Restated Receivables Purchase Agreement Amendment No. 5]
EX-99.1
Exhibit 99.1
Kelly Services Announces Agreement with Hunt Equity Opportunities and Board Appointments
TROY, MI. – January 30, 2026 – Kelly Services, Inc. (Nasdaq: KELYA; KELYB) (“Kelly” or the “Company”), a leading specialty talent solutions provider, announced today that the Company entered into a letter of agreement (the “Letter Agreement”) with Hunt Equity Opportunities, LLC, an indirect subsidiary of Hunt Companies, Inc. (“Hunt”), to provide for the amendment and expiration of the previously announced stockholder rights plan (the “Rights Plan”), and for certain conduct and approval covenants related to Kelly’s governance and transaction evaluation processes.
The intent of the adoption of the Rights Plan was to afford the Company’s board of directors (the “Board”) sufficient time to become informed about and evaluate the terms of the Share Purchase Agreement, dated January 9, 2026, between Terence E. Adderley Revocable Trust K (“Trust K”) and Hunt Equity Opportunities, LLC, and to consider the best interests of the stockholders of the Company unaffiliated with Trust K. Following extensive discussions with Hunt, the parties entered into the Letter Agreement pursuant to which the Board unanimously approved Amendment No. 1 to the Rights Plan (the “Amendment”), effective January 30, 2026. The Amendment, among other things, exempts the Hunt purchase of shares from Trust K (the “Transfer”) as a trigger event under the Rights Plan and provides that the Rights Plan expires immediately prior to the Transfer.
Thereafter, on January 30, 2026, Trust K closed a transaction with Hunt, pursuant to which Hunt acquired 3,039,940 shares of Class B Common Stock of Kelly from Trust K, causing Hunt to become the controlling stockholder of Kelly with 92.2% of the Class B Common Stock.
“Hunt is very excited about the value creation opportunities ahead for Kelly,” said James Christopher Hunt, chief executive officer of Hunt (“Chris Hunt”). “We look forward to supporting Chris Layden, chief executive officer of Kelly, and the rest of the Company’s management team as they focus on accelerating growth and realizing Kelly’s full potential.”
Also pursuant to the Letter Agreement, Kelly announced changes to the composition of the Company’s Board. Effective January 30, 2026, and until Kelly’s 2026 Annual Meeting of Stockholders, the Board is composed of four designees from Hunt, Chris Hunt, Angela Brock-Kyle, Edward Escudero, and James K. Hunt; Layden; and three directors serving on the Board as of the Letter Agreement date, Robert S. Cubbin, Amala Duggirala, and Leslie A. Murphy. Chris Hunt serves as the Company’s chairman. In connection with these changes, Terrence B. Larkin, Gerald S. Adolph, George S. Corona, InaMarie F. Johnson, and Peter W. Quigley resigned from the Board, effective January 30, 2026.
“On behalf of Kelly, we are pleased to welcome our new Board members as we continue to drive progress on the Company’s strategic journey. We remain committed to creating lasting value for all our stakeholders, and we look forward to working with our new directors toward that goal,” said Layden. “We are grateful to Trust K for its support of Kelly, and to the outgoing members of the Board for their dedicated service and contributions toward building a strong foundation upon which the Company can grow going forward.”
Additional information regarding the Letter Agreement will be contained in a current report on Form 8-K to be filed by the Company with the U.S. Securities and Exchange Commission.
Forward-Looking Statements:
This release contains statements that are forward looking in nature and, accordingly, are subject to risks and uncertainties. These statements are made under the “safe harbor” provisions of the U.S. Private Securities Litigation Reform Act of 1995. Statements that are not historical facts, including statements about Kelly’s financial expectations, are forward-looking statements. Factors that could cause actual results to differ materially from those contained in this release include, but are not limited to, (i) changing market and economic conditions, (ii) disruption in the labor market and weakened demand for human capital resulting from technological advances, loss of large corporate customers and government contractor requirements, (iii) the impact of laws and regulations (including federal, state and international tax laws), (iv) unexpected changes in claim trends on workers’ compensation, unemployment, disability and medical benefit plans, (v) litigation and other legal liabilities (including tax liabilities) in excess of our estimates, (vi) our ability to achieve our business’s anticipated growth strategies, (vii) our future business development, results of operations and financial condition, (viii) damage to our brands, (ix) dependency on second parties for the execution of critical functions, (x) conducting business in foreign countries, including foreign currency fluctuations, (xi) availability of temporary workers with appropriate skills required by customers, (xii) cyberattacks or other breaches of network or information technology security, and (xiii) other risks, uncertainties and factors discussed in this release and in the Company’s filings with the Securities and Exchange Commission. In some cases, forward-looking statements can be identified by words or phrases such as “may,” “will,” “expect,” “anticipate,” “target,” “aim,” “estimate,” “intend,” “plan,” “believe,” “potential,” “continue,” “is/are likely to” or other similar expressions. All information provided in this press release is as of the date of this press release and we undertake no duty to update any forward-looking statement, whether as a result of new information, future events, or otherwise, except as required by law.
Advisors
Nelson Mullins Riley & Scarborough LLP, Potter Anderson & Corroon LLP and Allerhand & Odoner LLP acted as legal counsel to Kelly. Paul, Weiss, Rifkind, Wharton & Garrison LLP acted as legal counsel to Hunt. Chestnut Partners acted as exclusive financial advisor and Goodwin Procter LLP acted as legal counsel to Trust K.
About Kelly^®^
Kelly Services, Inc. (Nasdaq: KELYA, KELYB) helps companies recruit and manage skilled workers and helps job seekers find great work. Since inventing the staffing industry in 1946, we have become experts in the many industries and local and global markets we serve. With a network of suppliers and partners around the world, we connect more than 400,000 people with work every year. Our suite of outsourcing and consulting services and solutions ensures companies have the people they need, when and where they are needed most. Headquartered in Troy, Michigan, we empower businesses and individuals to access limitless opportunities in industries such as science, engineering, technology, education, manufacturing, retail, finance, and energy. Revenue in 2024 was $4.3 billion. Learn more at kellyservices.com.
About Hunt Companies
Based in El Paso, Texas, Hunt Companies is a privately held investment platform with over 75 years of expertise in real estate, infrastructure, and financial services. Our nationwide operations are powered by a diverse portfolio of affiliates. From developing vibrant communities to managing complex financial structures, we are dedicated to creating value that endures. With a focus on sustainable growth and innovation, Hunt Companies continues to expand its impact, delivering results that benefit our clients, partners, and the communities we serve.
www.huntcompanies.com
KELYA-FIN
Analyst & Media Contact
Scott Thomas
(248) 251-7264
scott.thomas@kellyservices.com