PagerDuty, Inc. San Francisco, California 94103
Exhibit 10.1
EXECUTION VERSION
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
San Francisco, California 94103
April 28, 2025
Scalar Gauge Fund, LP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, Texas 75225
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Principal
Ladies and Gentlemen:
This letter (this “Agreement”) constitutes the agreement
between (a) PagerDuty, Inc. (“Company”) and (b) Scalar Gauge Fund, LP (“Scalar
Gauge”) and each of the other related Persons (as defined below) set forth on the signature pages to this Agreement (collectively with Scalar Gauge, the “Scalar
Gauge Signatories”). Company and the Scalar Gauge Signatories are collectively referred to as the “Parties.” The Scalar Gauge Signatories and each
Affiliate (as defined below) and Associate (as defined below) of each Scalar Gauge Signatory are collectively referred to as the “Scalar Gauge Group.”
1. New Independent Director. Effective as soon as reasonably practicable following the date of this Agreement (and in no circumstances later than the fifth Business Day following the date of this Agreement),
Company’s Board of Directors (the “Board”) will take all action necessary (including increasing the size of the Board) to appoint ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the “New Director”) as a Class I director with a term expiring at Company’s 2026 Annual Meeting of Stockholders (the “2026 Annual Meeting”). The New Director, and any Replacement Director (as defined below), shall be (a) appointed to the Board’s Audit Committee before the 2025 annual meeting of the Company’s
stockholders, and (b) considered for membership on other committees of the Board in the same manner as other independent members of the Board.
2. Replacement of the New Director. During the Restricted Period (as defined below) but subject to paragraph 3, if the New Director ceases to be a member of the Board for any reason, then Scalar Gauge will have
the right to identify (and as part of such identification process will consider in good faith any proposed replacements suggested by Company (it being understood that the final decision as to whom ▇▇▇▇▇▇ ▇▇▇▇▇ identifies for consideration as a
Replacement Director shall remain solely with Scalar Gauge)) another person (a “Replacement Director”) to serve as a director in place of the New Director,
and, subject to the next sentence of this paragraph 2, the Board will take all action necessary to, within 10 Business Days, appoint such other person so identified to serve as a director in place of the New Director. Any Replacement Director
must (a) be reasonably acceptable to the Board; (b) be qualified to serve as a member of the Board under all applicable corporate governance policies or guidelines of Company and the Board and applicable legal and regulatory requirements; (c)
meet the independence requirements with respect to Company of the listing rules of the New York Stock Exchange and all applicable rules of the Securities and Exchange Commission (the “SEC”), including with respect to applicable rules and regulations related to director service on certain committees; (d) have complied with Company’s procedures for new director candidates (including the full
completion of a directors and officers questionnaire, undergoing a customary background check, and participating in interviews with the members of the Board’s Nominating and Corporate Governance Committee and the Board); (e) not be a current or
former principal, Affiliate or Associate of the Scalar Gauge Group; and (f) have delivered the conditional resignation in the form of Exhibit C. In connection with the appointment of any Replacement Director, the members of the Scalar Gauge Group
will again make, for the benefit of Company, the representations in clauses (d) and (f) of paragraph 18. Upon becoming a member of the Board, the Replacement Director, as applicable, will succeed to all of the rights and privileges, and will be
bound by the terms and conditions, of the New Director under this Agreement.
3. Termination of Certain Obligations. Company’s obligations under paragraph 1, paragraph 2, paragraph 4 and paragraph 30 will immediately terminate upon the earliest of: (a) the Scalar Gauge Group no longer
beneficially owning shares of Company’s common stock (which shares are determined to be Net Long Shares (as defined below)) representing in the aggregate at least 50% of the number of shares disclosed in the first line of Exhibit B of the Company’s then-outstanding common stock; (b) any Restricted Person (as defined below) breaching this Agreement and such breach not being cured (if capable of being cured)
within 15 days after receipt by Scalar Gauge from Company of written notice specifying the breach; or (c) the submission by any Restricted Person of any director nominations in connection with any meeting of Company’s stockholders.
4. Size of the Board. During the Restricted Period, the Board will be comprised of no more than eleven directors.
5. Recusal. Scalar Gauge understands and agrees that the Board or any of its committees, in the exercise of its fiduciary duties, may require that the New Director be recused from any Board or committee meeting
or portion thereof at which the Board or any such committee is evaluating or taking action with respect to the exercise of any of Company’s rights or enforcement of any of the obligations under this Agreement.
6. Compliance with Laws and Company Policies. Scalar Gauge acknowledges that the New Director will be governed by the same laws, policies, procedures, processes, codes, rules, standards and guidelines applicable
to members of the Board, including Company’s code of conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, Regulation FD policy, related party transactions policy and the corporate governance guidelines, in each case in effect and as amended from time to time
(collectively, the “Policies”). Notwithstanding the foregoing, the Company agrees that Scalar Gauge shall not be restricted in any way from communicating
with the New Director, subject to the New Director’s compliance with applicable securities laws and the Policies.
7. No Fiduciary Restriction. Notwithstanding anything to the contrary in this Agreement, Company and Scalar Gauge each acknowledge that the New Director, during the New Director’s service as a director of
Company, will not be prohibited from acting in the New Director’s capacity as a director or from complying with the New Director’s fiduciary duties as a director of Company (including voting on any matter submitted for consideration by the Board,
participating in deliberations or discussions of the Board, and making suggestions or raising any issues or recommendations to the Board).
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8. Director Benefits. The New Director will be entitled to the same director benefits as other members of the Board, including (a) compensation for such directors’ service as directors and reimbursement of such
directors’ expenses on the same basis as all other non-employee directors of Company; (b) equity-based compensation grants and other benefits, if any, on the same basis as all other non-employee directors of Company; and (c) the same rights of
indemnification and directors’ and officers’ liability insurance coverage as the other non-employee directors of Company as such rights may exist from time to time.
9. Voting Commitment. During the Restricted Period, at each annual or special meeting of Company’s stockholders (including any adjournments, postponements or other delays thereof) or action by written consent,
Scalar Gauge will cause all Voting Securities (as defined below) that are beneficially owned by any Restricted Person to be (a) present for quorum purposes, if applicable; and (b) voted or consented (i) in favor of the election of each person
nominated by the Board for election as a director; (ii) against any proposals or resolutions to remove any member of the Board; and (iii) in accordance with the recommendation of the Board on all other proposals or business that may be the
subject of stockholder action at such meeting or action by written consent. Notwithstanding the foregoing, (A) if Institutional Shareholder Services Inc. (“ISS”)
or Glass Lewis & Co., LLC (“Glass Lewis”) recommends a vote inconsistent with the recommendation of the Board at any annual or special meeting of
Company’s stockholders with respect to (1) Company’s “say-on-pay” proposal or (2) any other proposal (other than the election or removal of directors), then the members of the Scalar Gauge Group will be permitted to vote in accordance with the
recommendation of ISS or ▇▇▇▇▇ ▇▇▇▇▇; and (B) the members of the Scalar Gauge Group will be permitted to vote in their sole discretion on any proposals related to an Extraordinary Transaction (as defined below).
10. Standstill. During the Restricted Period, the Scalar Gauge Group will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted
by this Agreement):
(a) with respect to Company or the Voting Securities, (i)
make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such
term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents; (iii) seek to advise, encourage or influence any Person, or to assist any Person in so encouraging, advising or influencing any Person, with respect to
the giving or withholding of any proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter, if applicable); or (iv)
initiate, encourage or participate, directly or indirectly, in any “vote no,” “withhold” or similar campaign;
(b) initiate, propose or otherwise “solicit” (as such term
is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule
14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
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(c) with respect to Company or the Voting Securities, (i)
communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv)(A) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of
“proxy access”; or (iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or
appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to nominate or propose the nomination of or recommend the nomination of, any candidate to the
Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any member of the Board;
(e) (i) call or seek to call a special meeting of
stockholders, or encourage any Person to call a special meeting of stockholders; (ii) act or seek to act by written consent of stockholders; or (iii) make a request for any stockholder list or other records of Company;
(f) other than solely with other Restricted Persons with
respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence (other than pursuant to Permitted Communications that would not otherwise violate this Section 10), advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any
Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by
the Board);
(g) (i) make any offer or proposal (with or without
conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, disposition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary
transaction involving Company, any of its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any
Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal
(with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any
Extraordinary Transaction; or (iv) publicly comment on any proposal regarding any Extraordinary Transaction (it being understood that this clause (g) will not restrict any Restricted Person from (A) having ordinary-course-of-business discussions
with current or potential investors in Company that would not otherwise violate this Agreement; (B) voting in favor of or against any proposal for an Extraordinary Transaction at an annual or special meeting of the stockholders of the Company; or
(C) tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a party, any
litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that the foregoing will not prevent any Restricted
Person from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates
against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly
issued legal process;
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(i) take any action in support of, or make any proposal or
request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or
influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure;
(iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company to be delisted from, or to cease to be authorized to be quoted on, any securities
exchange; or (vi) causing a class of securities of Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(j) sell, offer or agree to sell to any Third Party,
through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or similar transaction with
respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company;
(l) other than through non-public communications that
would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or
assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or
invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(m) make or cause to be made any statement that
disparages, calls into disrepute, slanders, impugns, casts in a negative light or otherwise damages the reputation of Company or any of its Affiliates, Associates, subsidiaries, successors or assigns, or any of its or their respective current or
former officers, directors, employees, stockholders, agents, attorneys, advisors or representatives, or any of its or their respective businesses, products or services, in any manner that would reasonably be expected to damage the business or
reputation of the other or its businesses, products or services (including any statements regarding Company’s strategy, operations, performance, products or services), it being understood that this clause (m) will not restrict the ability of any
Restricted Person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person; or (ii) enforce such Restricted Person’s rights
pursuant to this Agreement;
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(n) enter into any economic relationship with any Person
in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or
options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that,
notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on Scalar Gauge and the other Restricted Persons contemplated by this clause (n) will be operative so long as the
New Director is serving on the Board);
(o) other than with other Restricted Persons, enter into
any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this
Agreement;
(p) acquire, offer, agree or propose to acquire, whether
by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act),
through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Scalar Gauge Group in the
aggregate owning, controlling or otherwise having any beneficial or other ownership interest of 4.9 percent or more of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the
Scalar Gauge Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic
ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities), it being understood that any holdings of securities of Company will be on a passive basis;
or
(q) other than through open market broker sale
transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Third Party
that, to the knowledge of any member of the Scalar Gauge Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available
information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than
4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than
4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund
manager with no known history of activism or known plans to engage in activism).
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Nothing in this Section 10 shall be interpreted to restrict the Scalar Gauge Group from (x)
making confidential communications to any of their current or prospective investors or clients, in their capacities as such; provided that such conversations would not
otherwise violate this Section 10 (the communications referred to in this clause (x), “Permitted
Communications”), (y) presenting or discussing any matter with the Board or Company management pursuant to Section 30 or (z) commenting on any Extraordinary
Transaction for the sale of Company or substantially all of Company’s assets to a Third Party that the Board has recommended in favor of (and only after Company has announced such Extraordinary Transaction).
11. Withdrawal of Nominations. The Scalar Gauge Group agrees that automatically and without any additional action by any Party, upon the execution of this Agreement by all of the Parties, Scalar Gauge Fund LP
will be deemed to have irrevocably withdrawn its stockholder proposal and nomination of candidates for election as directors of Company set forth in its letter to Company dated March 14, 2025 (the “Nomination Notice”).
12. Non-Disparagement by Company. During the Restricted Period, Company will not, and will direct its directors, officers and employees not to, make or cause to be made any statement that disparages, calls into
disrepute, slanders, impugns, casts in a negative light or otherwise damages the reputation of any member of the Scalar Gauge Group or any of their respective Affiliates, Associates, subsidiaries, successors or assigns, or any of its or their
respective current or former officers, directors, employees, stockholders, agents, attorneys, advisors or representatives. This paragraph 12 will not restrict the ability of any Person to (a) comply with any subpoena or other legal process or
respond to a request for information from any governmental authority with jurisdiction over such Person; or (b) enforce such Person’s rights pursuant to this Agreement.
13. Compliance with this Agreement. Scalar Gauge will cause the Restricted Persons to comply with the terms of this Agreement and will be responsible for any breach of the terms of this Agreement by any
Restricted Person (even if such Restricted Person is not a party to this Agreement).
14. Expense Reimbursement. Within five Business Days of the receipt of appropriate documentation, if practicable, and in any event in accordance with Company’s regular accounts payable procedures, Company will
reimburse the Scalar Gauge Group for an agreed amount of its reasonable and documented out-of-pocket legal expenses incurred by the Scalar Gauge Group in connection with its investment in Company, nomination of director candidates, the
negotiation and execution of this Agreement and related matters. Except as set forth in the preceding sentence, all fees, costs and expenses incurred in connection with this Agreement will be paid by the Person incurring such fee, cost or
expense.
15. Public Disclosure.
(a) Press Release. No later than 6 a.m., Pacific time, on the first business day following the date of this Agreement, Company and Scalar Gauge will issue a joint press release in the form attached as Exhibit A (the “Press Release”). Neither Company nor the members of the Scalar Gauge
Group will make any public statements with respect to the matters covered by this Agreement or in any other filing with the SEC, any other regulatory or governmental agency, any stock exchange or in any materials that would reasonably be expected
to be filed with the SEC that are inconsistent with, or otherwise contrary to, the statements in the Press Release, or speak on the record or on background with the media about the other Party or its respective Affiliates.
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(b) Form 8-K. Company will promptly prepare and file (but not before the issuance of the Press Release) with the SEC a Current Report on Form 8-K (the “Form 8-K”) reporting the entry into this Agreement. All disclosure in the Form 8-K will be consistent with this Agreement. Company will provide Scalar Gauge and its counsel with a reasonable opportunity to
review and comment on the Form 8-K prior to filing, and will consider in good faith any changes proposed by Scalar Gauge or its counsel. The Form 8-K will include this Agreement as an exhibit.
16. Definitions. As used in this Agreement, the term (a) “Person” will be interpreted broadly to include, among others, any
individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of any kind or structure; (b) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and will include Persons who become Affiliates of any Person after the date of this Agreement; (c) “Associate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and will include Persons who become Associates of any Person after the date
of this Agreement, but will exclude any Person not controlled by or under common control with the related Person; (d) “beneficially own,” “beneficially owned” and “beneficial ownership” has the meaning set forth
in Rule 13d-3 and Rule 13d-5(b)(1) promulgated under the Exchange Act; (e) “Business Day” means any day other than a Saturday, Sunday or a day on which the
Federal Reserve Bank of San Francisco is closed; (f) “Net Long Shares” will be limited to the number of shares of Company’s common stock that are
beneficially owned by any Person that constitute such Person’s net long position as defined in Rule 14e-4 promulgated under the Exchange Act (except that for purposes of such definition, the date that the tender offer is first announced will
instead refer to the date for determining or documenting such Person’s Net Long Shares and the reference to the highest tender price will refer to the market price on such date) and, to the extent not covered by such definition, reduced by any
shares as to which such Person does not have the right to vote or direct the vote as of the date for determining or documenting or as to which such Person has entered into a derivative or other agreement, arrangement or understanding that ▇▇▇▇▇▇
or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares, it being understood that whether shares constitute Net Long Shares will be decided by the Board in its reasonable
determination; (g) “Restricted Period” means the period from the date of this Agreement until 11:59 p.m., Pacific time, on the day that is 15 days prior to
the deadline for the submission of stockholder nominations of directors and business proposals for Company’s 2026 Annual Meeting (it being understood that paragraphs 14, 16, 17 and 20 through 29 will survive the end of the Restricted Period and
any termination of this Agreement); (h) “Restricted Persons” means the members of the Scalar Gauge Group and the principals, directors, general partners,
officers, employees, agents and representatives of each member of the Scalar Gauge Group; and (i) “Voting Securities” means the shares of Company’s common
stock and any other securities of Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other
contingencies.
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17. Interpretations. The words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation.” Unless the context requires otherwise, “or” is not exclusive. The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, law, rule or statute defined or referred to in this Agreement means, unless otherwise indicated, such agreement,
instrument, law, rule or statute as from time to time amended, modified or supplemented. The measure of a period of one month or year for purposes of this Agreement will be the day of the following month or year corresponding to the starting
date. If no corresponding date exists, then the end date of such period being measured will be the next actual day of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May
1).
18. Representations of the Scalar Gauge Group. Each of the Scalar Gauge Signatories, severally and not jointly, represents that (a) its authorized signatory set forth on the signature page to this Agreement has
the power and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement and to bind such member; (b) this Agreement has been duly authorized, executed and delivered by it and is
a valid and binding obligation of such member, enforceable against it in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar
laws generally affecting the rights of creditors and subject to general equity principles; (c) this Agreement does not and will not violate any law, any order of any court or other agency of government, its organizational documents or any
provision of any agreement or other instrument to which it or any of its properties or assets is bound, or conflict with, result in a material breach of or constitute (with due notice or lapse of time or both) a default under any such agreement
or other instrument to which Scalar Gauge or any of the Scalar Gauge Signatories are bound, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature
whatsoever; (d) it has not, and no other member of the Scalar Gauge Group has, directly or indirectly, compensated or entered into any agreement, arrangement or understanding to compensate any person for his or her service as a director of
Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to
Company or its securities; (e) it is the beneficial owner of the securities of Company set forth on Exhibit B; (f) there is no economic relationship between any member
of the Scalar Gauge Group and the New Director relating to Company that has not been disclosed in the Nomination Notice; and (g) the New Director has executed and delivered to the Company the conditional resignation in the form of Exhibit C.
19. Representations of Company. Company represents that this Agreement (a) has been duly authorized, executed and delivered by it and is a valid and binding obligation of Company, enforceable against Company in
accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general
equity principles; (b) does not require the approval of the stockholders of Company; and (c) does not and will not violate any law, any order of any court or other agency of government, Company’s certificate of incorporation or bylaws, each as
amended from time to time, or any provision of any agreement or other instrument to which Company or any of its properties or assets is bound, or conflict with, result in a material breach of or constitute (with due notice or lapse of time or
both) a default under any such agreement or other instrument to which Company is bound, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature
whatsoever.
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20. Specific Performance. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by it and that, in the event of any breach
or threatened breach of this Agreement, (a) the Party seeking specific performance will be entitled to injunctive and other equitable relief, without proof of actual damages; (b) the Party against whom specific performance is sought will not
plead in defense that there would be an adequate remedy at law; and (c) the Party against whom specific performance is sought agrees to waive any applicable right or requirement that a bond be posted. Such remedies will not be the exclusive
remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.
21. Entire Agreement; Binding Nature; Assignment; Waiver. This Agreement constitutes the only agreement between the Parties with respect to the subject matter of this Agreement and it supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written. This Agreement binds, and will inure to the benefit of, the Parties and their respective successors and permitted assigns. No Party may assign or otherwise
transfer either this Agreement or any of its rights, interests, or obligations under this Agreement without the prior written approval of the other Party. Any purported transfer requiring consent without such consent is void. No amendment,
modification, supplement or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the affected Party, and then only in the specific instance and for the specific purpose stated in such writing. Any
waiver by any Party of a breach of any provision of this Agreement will 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 to
insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive that Party of the right to insist upon strict adherence to that term or any other term of this Agreement in the future.
22. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, then the other provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement that is held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable, and this Agreement will otherwise be construed so as to effectuate the
original intention of the Parties reflected in this Agreement. The Parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the
purposes of such invalid or unenforceable provision.
23. Governing Law; Forum. This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware. Each of the Parties (a) irrevocably and unconditionally consents to the
exclusive personal jurisdiction and venue of the Court of Chancery of the State of Delaware and any appellate court thereof (unless the federal courts have exclusive jurisdiction over the matter, in which case the United States District Court for
the District of Delaware and any appellate court thereof will have exclusive personal jurisdiction); (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 it will not bring any action relating to this Agreement or otherwise in any court other than the such courts; and (d) waives any claim of improper venue or any claim that those courts are an inconvenient forum. The Parties agree that
mailing of process or other papers in connection with any such action or proceeding in the manner provided in paragraph 26 or in such other manner as may be permitted by applicable law, will be valid and sufficient service thereof.
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24. Waiver of Jury Trial. EACH OF THE PARTIES, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. No Party will 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.
25. Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and is not enforceable by any other Person.
26. Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly delivered and received (a) four Business Days after being sent by registered or
certified mail, return receipt requested, postage prepaid; (b) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (c) immediately upon delivery by hand; or (d) on
the date sent by email (except that notice given by email will not be effective unless either (i) a duplicate copy of such email notice is promptly given by one of the other methods described in this paragraph 26 or (ii) the receiving Party
delivers a written confirmation of receipt of such notice either by email or any other method described in this paragraph 26 (excluding “out of office” or other automated replies)). The addresses for such communications are as follows. At any
time, any Party may, by notice given to the other Parties in accordance with this paragraph 26, provide updated information for notices pursuant to this Agreement.
If to Company:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
San Francisco, CA 94103
| Attention: |
▇▇▇▇▇ ▇▇▇
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| Email: |
▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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with a copy (which will not constitute notice) to:
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
New York, NY 10019
| Attention: |
▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
| Email: |
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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▇▇▇▇▇▇@▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
If to the Scalar Gauge Group:
Scalar Gauge Management, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, TX 75225
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Attention:
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▇▇▇▇▇ ▇▇▇▇▇▇
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| Email: |
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with a copy (which will not constitute notice) to:
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
New York, NY 10020
| Attention: |
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇▇ ▇▇▇▇▇▇▇
| Email: |
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
27. Representation by Counsel. Each of the Parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it
has executed this Agreement with the advice of such counsel. Each Party and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be
deemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this
Agreement against any Party that drafted or prepared it is of no application and is expressly waived by each of the Parties, and any controversy over interpretations of this Agreement will be decided without regard to events of drafting or
preparation.
28. Counterparts. This Agreement and any amendments to this Agreement may be executed in one or more textually-identical counterparts, all of which will be considered one and the same agreement and will become
effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or
.pdf, .tif, .gif, .jpg or similar attachment to electronic mail or by an electronic signature service (any such delivery, an “Electronic Delivery”), will be
treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party may raise the use of an Electronic
Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the formation of a contract, and each Party forever waives any
such defense, except to the extent that such defense relates to lack of authenticity.
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29. Headings. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any
term or provision of this Agreement.
30. Board Presentations; Access to Management. During the Restricted Period, the Board and the Company’s management shall permit ▇▇▇▇▇ ▇▇▇▇▇▇ to present his ideas for value creation for the Company (a) at two of
the Board’s regularly scheduled quarterly Board meetings in 2025 and (b) one meeting per quarter with members of the Company’s management (half of which shall include at least the Company’s Chief Executive Officer and the other half of which
shall include at least the Chief Financial Officer) at mutually convenient times. Scalar Gauge agrees to provide any presentation materials to the Board or the Company’s management, as applicable, reasonably in advance of any such presentation
and to design such presentation materials and presentation so that the contents thereof would not reasonably be expected to trigger public disclosure obligations on the part of any Party.
[Signature page follows.]
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Very truly yours,
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Chief Executive Officer and Chairperson
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ACCEPTED AND AGREED
as of the date written above:
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SCALAR GAUGE FUND, LP
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By: Scalar Gauge GP, LP, its general partner
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By: Scalar Gauge Management, LLC, its general partner
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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SCALAR GAUGE MANAGEMENT, LLC
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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SCALAR GAUGE GP, LP
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By: Scalar Gauge GP, LP, its general partner,
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Manager
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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▇▇▇▇▇ ▇▇▇▇▇▇
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[Signature Page to Letter Agreement]
EXHIBIT A
Form of Press Release
Filed separately as Exhibit 99.1 to this Current Report on Form 8-K
EXHIBIT B
Aggregate number of shares beneficially owned by the Scalar
Gauge Group as of the date of this Agreement: 663,241
Securities Holdings by Member of the Scalar Gauge Group
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Name
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Class
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Number
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Scalar Gauge Fund, LP (“Scalar Gauge”)
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Common Stock, par value $0.000005 per share
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403,200 shares of Common Stock owned directly, including 1,000 shares held in record name and 402,200 shares held in “street name”
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Scalar Gauge Management, LLC (“Scalar Management”)
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Common Stock, par value $0.000005 per share
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May be deemed to beneficially own 663,241 shares of Common Stock (consisting of (i) 403,200 shares of Common Stock owned directly by Scalar Gauge and (ii)
260,041 shares of Common Stock held in separately managed accounts (the “SMAs”) by virtue of its status as investment manager for each of the foregoing and as general partner of Scalar GP.
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Scalar Gauge GP, LP (“Scalar GP”)
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Common Stock, par value $0.000005 per share
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May be deemed to beneficially own 403,200 shares of Common Stock (consisting of 403,200 shares of Common Stock owned directly by Scalar Gauge).
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||
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▇▇▇▇▇ ▇▇▇▇▇▇
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Common Stock, par value $0.000005 per share
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May be deemed to beneficially own 663,241 shares of Common Stock (consisting of (i) 403,200 shares of Common Stock owned directly by Scalar Gauge and (ii)
260,041 shares of Common Stock held in the SMAs by virtue of his status as manager of Scalar Management.
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EXHIBIT C
Conditional Resignation
The undersigned confirms, for the benefit of PagerDuty, Inc., that his resignation from service on the board of directors of the Company and all committees of the board
is hereby submitted, with effect upon the occurrence of an event specified in paragraph 3(c) of the Cooperation Agreement, dated as of April 28, 2025, between the Scalar Gauge Signatories (as defined therein) and PagerDuty, Inc. and the acceptance
by the board of directors of this resignation after the occurrence of such event specified in such paragraph 3(c).
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/s/ Don ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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