MNTN, Inc S-1/A, filed Mar 12, 2025

MNTN, Inc. (MNTN)

S-1/A 2025-03-12

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Exhibit Number			Description of Exhibit
1.1**			Form of Underwriting Agreement.
3.1*			Amended and Restated Certificate of Incorporation of the Registrant, as amended on May 9, 2024, as in effect prior to the consummation of this offering.
3.2*			Bylaws of the Registrant, dated as of April 10, 2009, as amended by that certain Amendment No. 1, dated as of September 15, 2011, and as further amended on August 28, 2022 and September 27, 2022, as in effect prior to the consummation of this offering.
3.3			Form of Amended and Restated Certificate of Incorporation of the Registrant, to be in effect upon the consummation of this offering.
3.4			Form of Amended and Restated Bylaws of the Registrant, to be in effect upon the consummation of this offering.
4.1*			Specimen Class A Common Stock Certificate of the Registrant.
4.2#			Form of Amended and Restated Investors’ Rights Agreement, by and among the Registrant and certain of its shareholders to be in effect upon the consummation of this offering.
4.3*#+			Warrant to Purchase Common Stock, dated as of April 5, 2018, by and between the Registrant and Silicon Valley Bank.
4.4*#+			Form of Warrant to Purchase Series D Preferred Stock of the Registrant.
5.1**			Opinion of Latham & Watkins LLP.
10.1*			Form of Indemnification Agreement between the Registrant and each of its directors and executive officers.
10.2†*			Registrant’s 2009 Equity Incentive Plan and form of stock option agreement.
10.3†*			Registrant’s 2018 QuickFrame Inc. Stock Plan.
10.4†			Registrant’s Amended and Restated 2021 Equity Incentive Plan and form of stock option agreement.
10.5†			Registrant’s 2025 Incentive Award Plan.
10.6†			Form of 2025 Plan Stock Option Agreement.
10.7†			Form of 2025 Plan Restricted Stock Unit Award Agreement.
10.8†			Form of 2025 Employee Stock Purchase Plan.
10.9†			Non-Employee Director Compensation Policy.
10.10†**			Amended and Restated Offer Letter Agreement between the Registrant and Patrick A. Pohlen, dated , 2025.
10.11*#+			Amended and Restated Business Financing Agreement, dated as of November 23, 2021, between the Registrant, as borrower, and Western Alliance Bank, as lender.
10.12*#+			First Modification to Amended and Restated Business Financing Agreement, dated as of August 1, 2022, between the Registrant, as borrower, and Western Alliance Bank, as lender.
10.13*#			Second Modification to Amended and Restated Business Financing Agreement, dated as of June 27, 2023, between the Registrant, as borrower, and Western Alliance Bank, as lender.
10.14*			Third Modification to Amended and Restated Business Financing Agreement, dated August 7, 2024, between the Registrant, as borrower, and Western Alliance Bank, as lender.
10.15*			Fourth Modification to Amended and Restated Business Financing Agreement, dated February 26, 2025, between the Registrant, as borrower, and Western Alliance Bank, as lender.

Exhibit Number			Description of Exhibit
10.16*			Form of 2023 Convertible Note.
10.17*			Amendment to Note and Warrant Purchase Agreement and Omnibus Amendment to Notes, as of May 4, 2023.
10.18*			Omnibus Amendment to 2023 Convertible Notes and 2023 Warrants, as of May 9, 2024.
21.1*			List of subsidiaries of the Registrant.
23.1*			Consent of KPMG LLP.
23.2**			Consent of Latham & Watkins LLP (included in Exhibit 5.1).
24.1*			Power of Attorney (included on signature page).
107.1*			Calculation of Registration Fee.

Signature	Title	Date
/s/ Mark Douglas Mark Douglas	Chief Executive Officer (Principal Executive Officer), Chairman of the Board	March 12, 2025
/s/ Patrick A. Pohlen Patrick A. Pohlen	Chief Financial Officer (Principal Financial and Accounting Officer)	March 12, 2025
* Grant Ries	Director	March 12, 2025
* Joe B. Johnson	Director	March 12, 2025
* Hadi Partovi	Director	March 12, 2025
* Dana Settle	Director	March 12, 2025
* Joseph Kaiser	Director	March 12, 2025

		MNTN, Inc., a Delaware corporation

		By:
		Name:
		Title:

Article I - Corporate Offices		1

1.1	Registered Office	1
1.2	Other Offices	1

Article II - Meetings of Stockholders		1

2.1	Place of Meetings	1
2.2	Annual Meeting	1
2.3	Special Meeting	1
2.4	Notice of Business to be Brought before a Meeting	2
2.5	Notice of Nominations for Election to the Board	6
2.6	Additional Requirements for Valid Nomination of Candidates to Serve as Director and, if Elected, to be Seated as Directors	9
2.7	Notice of Stockholders’ Meetings	11
2.8	Quorum	11
2.9	Adjourned Meeting; Notice	11
2.10	Conduct of Business	12
2.11	Voting	12
2.12	Record Date for Stockholder Meetings and Other Purposes	13
2.13	Proxies	13
2.14	List of Stockholders Entitled to Vote	13
2.15	Inspectors of Election	14
2.16	Delivery to the Corporation	14

Article III - Directors		15

3.1	Powers	15
3.2	Number of Directors	15
3.3	Election, Qualification and Term of Office of Directors	15
3.4	Resignation and Vacancies	15
3.5	Place of Meetings; Meetings by Telephone	15
3.6	Regular Meetings	16
3.7	Special Meetings; Notice	16
3.8	Quorum	16
3.9	Board Action without a Meeting	17
3.10	Fees and Compensation of Directors	17

Article IV - Committees		17

4.1	Committees of Directors	17
4.2	Committee Minutes	17
4.3	Meetings and Actions of Committees	18
4.4	Subcommittees	18

Article V - Officers		18

5.1	Officers	18
5.2	Appointment of Officers	19

5.3	Subordinate Officers	19
5.4	Removal and Resignation of Officers	19
5.5	Vacancies in Offices	19
5.6	Representation of Shares of Other Corporations	19
5.7	Authority and Duties of Officers	19
5.8	Compensation	20

Article VI - Records		20

Article VII - General Matters		20

7.1	Execution of Corporate Contracts and Instruments	20
7.2	Stock Certificates	20
7.3	Special Designation of Certificates	21
7.4	Lost Certificates	21
7.5	Shares Without Certificates	21
7.6	Construction; Definitions	21
7.7	Dividends	21
7.8	Fiscal Year	22
7.9	Seal	22
7.10	Transfer of Stock	22
7.11	Stock Transfer Agreements	22
7.12	Registered Stockholders	22
7.13	Waiver of Notice	23

Article VIII - Notice		23

8.1	Delivery of Notice; Notice by Electronic Transmission	23

Article IX - Indemnification		24

9.1	Indemnification of Directors and Officers	24
9.2	Indemnification of Others	24
9.3	Prepayment of Expenses	24
9.4	Determination; Claim	25
9.5	Non-Exclusivity of Rights	25
9.6	Insurance	25
9.7	Other Indemnification	25
9.8	Continuation of Indemnification	25
9.9	Amendment or Repeal; Interpretation	26

Article X - Amendments		26

Article XI - Definitions		27

1.	Registration Rights		1

	1.1	Definitions	1
	1.2	Request for Registration	4
	1.3	Company Registration	6
	1.4	Obligations of the Company	7
	1.5	Furnish Information	8
	1.6	Expenses of Registration	9
	1.7	Delay of Registration	9
	1.8	Indemnification	9
	1.9	Reports Under Exchange Act	11
	1.10	Form S-3 Registration	12
	1.11	Assignment of Registration Rights	13
	1.12	Termination of Registration Rights	13
	1.13	Limitations on Subsequent Registration Rights	13

2.	[Reserved]		14

3.	Indemnification of Directors		14

4.	Restrictions on Transferability of Securities; Compliance with Securities Act		14

	4.1	Restrictions on Transferability	14
	4.2	Notice of Proposed Transfers	14

5.	Miscellaneous		15

	5.1	Successors and Assigns	15
	5.2	Governing Law	15
	5.3	Venue	15
	5.4	Jury Trial	16
	5.5	Counterparts	16
	5.6	Titles and Subtitles	16
	5.7	Notices	16
	5.8	Amendments and Waivers	17
	5.9	Severability	17
	5.10	Delays or Omissions	17
	5.11	Entire Agreement	17
	5.12	Aggregation of Stock	17
	5.13	Electronic and Facsimile Signatures	18
	5.14	Advice of Counsel	18
	5.15	Construction	18
	5.16	Attorneys’ Fees	18
	5.17	Further Assurances	18
	5.18	Corporate Opportunities	18
	5.19	Effective Time	18

Schedule A		Schedule of Investors
Schedule B		Schedule of Key Holders

	COMPANY:

	MNTN, INC.

	By:
	Name:
	Title:

Participant:	[____________]
Grant Date:	[____________]
Vesting Commencement Date:	[____________]
Exercise Price per Share:	$[___________]
Total Exercise Price:	[____________]
Total Number of Shares Subject to the Option:	[____________]
Expiration Date:	[____________]
Vesting Schedule:	[____________]

MNTN, INC.:			PARTICIPANT:

By:			By:
Print Name:			Print Name:
Title:
Address:			Address:

Participant:	[_____________]
Grant Date:	[_____________]
Total Number of RSUs:	[_____________]
Vesting Commencement Date:	[_____________]
Vesting Schedule:	[_____________]
Termination of Service:	Except as otherwise provided by the Administrator, if Participant experiences a Termination of Service, all RSUs that have not become vested on or prior to the date of such Termination of Service will thereupon be automatically forfeited by Participant without payment of any consideration therefor.

Non-Employee Director:	$	45,000
Lead Independent Director:	$	20,000
Audit Committee Chair:	$	25,000
Compensation Committee Chair:	$	20,000
Nominating and Corporate Governance Committee Chair:	$	15,000
Audit Committee Member (non-Chair):	$	12,500
Compensation Committee Member (non-Chair):	$	10,000
Nominating and Corporate Governance Committee Member (non-Chair):	$	7,500

	·           Annual Election. No later than December 31 of each calendar year, or such earlier deadline as may be established by the Board or the Compensation Committee, in its discretion (the “*Annual Election Deadline”), each individual who is a Non-Employee Director as of immediately prior to the Annual Election Deadline may make a Retainer RSU Election with respect to the annual retainer relating to services to be performed in the following calendar year (the “Annual Election*”). The Annual Election must be submitted to the Company on or prior to the applicable Annual Election Deadline and shall become effective and irrevocable as of the Annual Election Deadline.

	·           Deferral of Settlement. The Board, the Compensation Committee or their respective authorized designee may, in its discretion, provide an individual who is a Non-Employee Director with the opportunity to defer the delivery of the shares underlying Retainer RSUs that would otherwise be delivered to the individual hereunder. Any such deferral election shall be subject to such rules, conditions and procedures as shall be determined by the Board or the Compensation Committee, in its sole discretion, which rules, conditions and procedures shall at all times comply with the requirements of Section 409A of the Code, unless otherwise specifically determined by the Board or the Compensation Committee. If an individual elects to defer the delivery of the shares underlying Retainer RSUs in accordance herewith, settlement of the deferred Retainer RSUs shall be made in accordance with the terms of the Retainer RSU Election.


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