IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

BENCHMARK CAPITAL PARTNERS VII,

L.P., a Delaware limited partnership, C.A. No. 2017-0575-SG

Plaintiff,

v.

TRAVIS KALANICK,

Defendant,

and

UBER TECHNOLOGIES, INC., a Delaware

corporation,

Nominal Defendant.

SOFREH LP AND STEPHEN RUSSELLS MOTION TO INTERVENE

PRICKETT, JONES & ELLIOTT, P.A.

OF COUNSEL: Michael Hanrahan (DE Bar No. 941)

Corinne Elise Amato (DE Bar No. 4982)
QUINN EMANUEL
Eric J. Juray (DE Bar No. 5765)
URQUHART & SULLIVAN,
1310 N. King Street
LLP
Wilmington, Delaware 19801
Michael B. Carlinsky
(302) 888-6500
Joshua S. Margolin
Kimberly E. Carson
Attorneys for Intervenors Sofreh LP and
51 Madison Avenue, 22nd Floor
Stephen Russell
New York, New York 10010
(212) 849-7000
 Sofreh LP and Stephen Russell (collectively, Intervenors) respectfully

submit this motion to intervene (the Motion) pursuant to Court of Chancery Rule

24 (Rule 24).1

PRELIMINARY STATEMENT
Intervenors, substantial investors in Uber Technologies, Inc. (Uber or the

Company), seek to intervene for the purpose of protecting their rights and

interests from the transparent efforts of Benchmark Capital Partners VII, L.P.

(Benchmark), a preferred stockholder of Uber entitled to designate one director,

to unscrupulously gain control of Ubers board of directors (the Board) and the

Company at the expense of other investors for little more than the cost of a lawsuit.

A clear and unambiguous arbitration clause in the June 1, 2016 Uber Amended and

Restated Voting Agreement (the Voting Agreement) requires that any

unresolved controversy or claim arising out of or relating to the Voting Agreement

be submitted to arbitration, where it can be resolved privately to avoid reputational

damage to the Company. Instead, Benchmark, without warning or explanation,

1
As discussed below, Intervenors do not believe that this Court has subject matter
jurisdiction over this litigation, including the issue of whether Benchmarks claims
are arbitrable, and Intervenors are only conditionally appearing now to protect their
rights. Accordingly, neither this Motion nor the accompanying complaint should
be considered a concession by Intervenors that the Court has such jurisdiction.
Additionally, Intervenors understand that the Court has already set a hearing date
to address Kalanicks motion to dismiss for lack of subject matter jurisdiction, and
this Motion in no way seeks to interfere with the current schedule. Indeed, the
granting of Kalanicks motion to dismiss may moot this Motion.
filed its inflammatory lawsuit publicly maligning Ubers founder, Travis Kalanick,

in an attempt to eliminate three Board seats it agreed the Class B stockholders

could elect and Kalanick could designate.

This blatant disregard of its contractual obligations is only the latest gambit

in Benchmarks efforts to gain control of Uber. Benchmark has benefited

spectacularly from its investment in Uber under Kalanicks leadership. With

Kalanick as CEO, Benchmarks $27 million investment has increased in value to

some $8.4 billion. But greedily, Benchmark wanted more. Without notice to the

Board, in June of this year, just days after Kalanicks mother was killed in a tragic

boating accident, which also critically injured his father, Benchmark capitalized on

grieving Kalanicks vulnerability by ambushing him alone at a hotel room in

Chicago and demanding that he resign as CEO and agree to restrictions on his

Board seats. Benchmark threatened that if he did not, Benchmark (and other

investors whom Benchmark enlisted in its efforts) would begin a public campaign

against him, the obvious effect of which would be not only to smear his reputation,

but to harm the Company that he founded and built. Although Kalanick resigned

as CEO, Benchmark, through its trumped-up lawsuit, has launched the public

smear campaign anyway, ignoring the arbitration clause that requires such a

dispute to be pursued privately so as to avoid the harm that Benchmark hasand

will continue toinflict on the Company. Benchmarks dirty tactics and strong

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arming extend even beyond this lawsuit; for example, in a carefully orchestrated

charade, Benchmark is currently trying to cram down, on its own arbitrary

timetable, its own preferred CEO candidate, Meg Whitman, with inaccurate denials

that she is a candidate.

Intervenors have direct and substantial interests in protecting and enforcing

their rights as investors in Uber and as parties to the Voting Agreement, including

to ensure Benchmark abides by the arbitration clause to which all parties, including

Benchmark, agreed, to avoid Benchmarks brazen effort to deprive Intervenors of

their voting rights under that Agreement, and to prevent further harm to

Intervenors substantial investments. Accordingly, Intervenors respectfully request

that the Court grant their Motion, make them parties to the litigation, and consider

their pleading which seeks to confirm that Benchmarks claims must be arbitrated.

BACKGROUND

A. The Voting Agreement and Kalanicks Rights Thereunder

Intervenors are both investors in Uber. Russell is a party to the Voting

Agreement. Upon information and belief, Sofreh LP is also a party to the Voting

Agreement as the ultimate assignee of shares from another party to the Voting

Agreement. Benchmark, Kalanick, and Uber are likewise parties to the Voting

Agreement. The Voting Agreement sets forth, among other items, the agreed

composition of the Board, voting rights, and the right to fill Board seats.

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Benchmark Compl., Ex. C (Voting Agreement) (Trans. I.D. No. 60966121).

Section 5.4 of the Voting Agreement requires that certain written consents be

obtained for any amendments to the Voting Agreement.

In June 2016, the Saudi Arabian governments Public Investment Fund

(PIF) made a sizeable $3.5 billion investment in Uber. In connection with this

investment, the Voting Agreement was amended to give PIF the right to designate

a member of Ubers Board and to give the Class B stock the right to elect three

additional voting common directors designated by Kalanick. Benchmark Compl.,

Ex. C 1.1(e)(ii)-(iii). Ubers principal investors agreed to the latter amendment

proposed by Kalanick.2 At no point prior to this litigation did Benchmark publicly

raise any concerns regarding the 2016 amendment to the Voting Agreement, or

how the amendment was procured.

B. Benchmark Coldly Seeks to Capitalize on Kalanicks Personal

Tragedy
Kalanick lost his beloved mother, Bonnie Horowitz Kalanick, last May 27,

2017 in an accident that also critically injured his father. Two weeks later, the

2
Benchmarks Complaint misleadingly omits that this June 2016 amendment
took place in the context of this large investment, and instead alleges, without any
factual support, that Kalanick understood that [his alleged prior conduct], once
revealed, would likely force him to resign as Ubers CEO, and thus sought to grant
himself a way to play an ongoing leadership role at Uber once the truth came out.
Benchmark Compl. 6; see also id. 24.
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Board, with the support of Benchmark, approved Kalanicks decision to take a

leave of absence from the Company to care for his father and deal with his grief.

Notwithstanding this seeming accord, on June 20, 2017, without notice to

the Board, Benchmark representatives flew to Kalanicks hotel in Chicago,

accosted the grieving Kalanick alone, and demanded that he sign an agreement

resigning as CEO and agree to amendments to the Voting Agreement imposing

restrictions that are not contained in the Voting Agreement on his designations of

directors. Benchmark threatened that if Kalanick refused those terms, Benchmark

and other investors would start a very public campaign to malign him and seek his

removal.

Kalanick ultimately provided a signed letter to Benchmark later the same

day stating that he would resign as CEO and containing a paragraph stating that he

would agree to vote as a director and stockholder for conforming amendments

to the Voting Agreement so that two of the three directors he designates under

Section 1.1(e) of the Voting Agreement will be independent directors subject to the

approval of all but one director. Benchmark Compl., Ex. A (Trans. I.D. No.

60966121). Prior to signing the letter, Kalanick demanded the removal of a

provision that purported to make the document a contractual undertaking. No

other party to the Voting Agreement, not even Benchmark, executed Kalanicks

letter, and Kalanick received no consideration for signing it.

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 Following Kalanicks resignation, he appointed himself to one of the three

Board seats he controlled. Kalanick was then presented, at Benchmarks request,

with a proposed amendment to the Voting Agreement that included a provision

that Kalanick could and would appoint himself to the Board, but required that all

but one director approve his nominations for his two other Board seats. Kalanick,

apparently realizing that Benchmark was attempting to seize control of the Board,

rejected the proposed amendment.

C. Benchmark Improperly Commences Suit

Rather than raising its concerns within the Board, as it should have, or filing

a complaint in arbitration, as it was required to do, Benchmark brought this lawsuit

without warning, knowing that it would garner enormous publicity and vilify

Kalanick. All Benchmarks claims arise out of or relate to the Voting Agreement.

Specifically, Benchmark seeks, among other things, to either eliminate the three

additional directors the Voting Agreement provides that Kalanick is to designate at

his sole discretion, or to impose restrictions as to whom Kalanick may designate

for directorships.

Benchmark bases its demands for relief on Kalanicks June 20, 2017 letter

discussed above, along with allegations that Kalanick obtained the creation of and

the right to designate three new Board seats in June 2016 due to material

misstatements and fraudulent concealment from Benchmark of material

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information that would have led Benchmark to reject the creation of the seats, and

by his intentional failure to disclose to Benchmark and other stockholders adequate

information for them to evaluate the requested stockholder consent to create the

Board seats. Benchmark Compl. 2. Benchmark does not have grounds to

remove the three Board seats, and Intervenors will set forth their position on these

issues in the arbitration, in accordance with the Voting Agreement. Suffice it to

say for the limited purpose of this Motion, for a year after the June 2016

amendments to the Voting Agreement, Benchmark made no public complaints

about any alleged misstatements, concealment, or fraudulent conduct by Kalanick.

This was so, even though matters that Benchmark now complains were concealed

were, by Benchmarks own admissions, publicly reported on and/or litigated.3

Putting aside that Benchmark is, by way of this litigation, attempting to

unilaterally amend the Voting Agreement and change the entire structure of the

Board without obtaining the required votes and consents, the Voting Agreement

3
See, e.g., Benchmark Compl. 34 (alleging that [i]n February 2017, Waymo
sued Uber for theft of trade secrets . . . .), 44 (alleging that in June 2017,
various publications first reported that Eric Alexander, the then-president of Ubers
Asia operations, had obtained the passengers medical records shortly after the
rape), 47 (alleging that [o]n February 19, 2017, a former Uber engineer named
Susan Fowler wrote a blog post describing a pervasive culture of sexism,
discrimination and harassment at Uber . . . .), 54 (alleging that [i]n March
2017, a New York Times article reported that Uber had for years engaged in a
worldwide program, using a tool known as Greyball, to deceive the authorities
in markets where law enforcement had banned or resisted Ubers service) (all
emphases added).
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has a mandatory arbitration clause which requires that [a]ny unresolved

controversy or claim arising out of or relating to this Agreement . . . shall be

submitted to arbitration. Benchmark Compl., Ex. C 5.18. Benchmark blatantly

ignored this provision in an attempt to take its war with Kalanick public, exactly

what it threatened Kalanick with in June of 2017.4 There is no question that this

dispute should be before an arbitrator rather than this Court.

ARGUMENT

A. Intervenors Should Be Permitted to Intervene as of Right

Intervenors should be permitted to intervene in this action as of right.

Delaware courts embrace a liberal policy of allowing intervention. Franklin

Balance Sheet Inv. Fund v. Crowley, 2006WL 4782314, at *3 (Del. Ch. Oct. 19,

2006). Under Rule 24(a)(2), upon a timely application, a party may intervene as of

right when the applicant claims an interest relating to the property or transaction

which is the subject of the action and the applicant is so situated that the

disposition of the action may as a practical matter impair or impede the applicants

4
In response to this lawsuit, a group of Uber shareholders, including Shervin
Pishevar, the Manager of Sofreh LLC, which is the General Partner of Intervenor
Sofreh LP, sent Benchmark an email asking Benchmark to allow[] the necessary
work to be done in the Board Room rather than the Courtroom, and noting that it
was not prudent or necessary from the standpoint of shareholder value, to hold the
company hostage to a public relations disaster by demanding Mr. Kalanicks
resignation, along with other concessions, on a few hours notice and within weeks
of a personal tragedy, under threat of public scandal or to escalate the matter with
its lawsuit that could cost the company public goodwill, interfere with fundraising
and impede the critical search for a new, world-class Chief Executive Officer.
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ability to protect that interest, unless the applicants interest is adequately

represented by existing parties. Del. Ch. Ct. R. 24(a)(2).5

As investors in Uber and as parties to the Voting Agreement at the heart of

Benchmarks complaint (the Complaint), Intervenors have direct and substantial

interests relating to the transaction that is the subject of this action (i.e., the Voting

Agreement) and to how and in what forum Benchmarks demands to amend the

Voting Agreement are resolved. See Rainbow Nav., Inc. v. Yonge, 1988 WL

909327, at *1 (Del. Ch. Feb. 23, 1988) (a party to a shareholder agreement has an

interest when the agreement is subject to dispute). The disposition of this action

may as a practical matter impair or impede Intervenors rights to protect their

interests under the Voting Agreement and in the control over Uber and its Board.

Moreover, the forum in which this dispute ultimately proceeds may have negative

impacts on Uber itself. Arbitration proceedings are private, and Benchmarks

allegations can be dealt with in arbitration outside the public eye. Intervenors have

much at stake in this litigation, which ties back to the Voting Agreement.

Further, Intervenors interests are not adequately represented by the

existing parties, as Intervenors have interests concerning their investments in Uber

5
Intervenors seek to be made parties to this action for the additional reason that it
will facilitate their participation in the arbitration proceeding that will follow if, as
requested, the matter is compelled to arbitration. For the reasons stated above,
Intervenors intend to protect their rights and interests in the Voting Agreement and
their investments in Uber by participating as parties in any arbitration proceeding
that follows from this action.
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separate from any interests of Benchmark, Kalanick, or Uber. As Benchmarks

Complaint (19) admits, Benchmarks primary interest in Uber is as a preferred

stockholder entitled to designate one director. Elimination of three voting common

directors increases Benchmarks Board influence and reduces the influence of

other investors. To be clear, Intervenors do not support Benchmarks attempted

power grab or illegitimate claims, and Intervenors object to any attempt to change

the rights under the Voting Agreement absent the written consents required by

Section 5.4. Intervenors believe Section 5.18 of the Voting Agreement requires

that the arbitrability of Benchmarks claims be determined by the arbitrator and

that such claims are subject to mandatory arbitration. However, if the fundamental

power structure of Ubers Board is to be litigated in this Court, Intervenors voices

need to be heard.6

B. Alternatively, the Court Should Permit Intervenors to Intervene

as a Matter of Discretion
To the extent that Intervenors are not permitted to intervene in this action as

of right, they should be permitted to intervene as a matter of discretion. Even if a

party is not entitled to intervene as of right, under the less exacting standard of

Rule 24(b), the Court may grant a permissive motion to intervene. See In re

6
This Motion is timely. Benchmark filed its Complaint just two weeks ago. The
litigation is in its preliminary stage, no discovery has commenced, and no
substantive issues have been resolved by the Court. As such, intervention would
not cause prejudice to any party.
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Interstate Gen. Media Holdings, LLC, 2014 WL 1364938, at *3 (Del. Ch. Apr. 7,

2014). Under Rule 24(b), [u]pon timely application anyone may be permitted to

intervene in an action . . . when an applicants claim or defense and the main action

have a question of law or fact in common. Del. Ch. Ct. R. 24(b). In considering

whether to grant a permissive intervention, Rule 24(b) provides that the Court

shall consider whether the intervention will unduly delay or prejudice the

adjudication of the rights of the original parties. Id.

In compliance with Rule 24(c), this Motion is accompanied by a pleading in

the form of Intervenors complaint (attached hereto as Exhibit A), which seeks a

declaratory judgment that this Court lacks subject matter jurisdiction over

Benchmarks Complaint because of the mandatory arbitration provision in the

Voting Agreement, and that, therefore, this litigation must be either dismissed or

stayed in favor of arbitration.

Accordingly, Intervenors claim clearly has common questions of both law

and fact with the main action. Further, as discussed above, Intervenors proposed

intervention will not cause any undue delay or prejudice to the adjudication of the

existing parties rights because this litigation is in its preliminary phases.

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 CONCLUSION
For the foregoing reasons, Intervenors respectfully request that their Motion

to intervene be granted.

Dated: August 24, 2017

WORDS: 2,772

PRICKETT, JONES & ELLIOTT, P.A.

OF COUNSEL: /s/ Corinne Elise Amato

Michael Hanrahan (#941)
QUINN EMANUEL
Corinne Elise Amato (#4982)
URQUHART & SULLIVAN,
Eric J. Juray (#5765)
LLP
1310 N. King Street
Michael B. Carlinsky
Wilmington, Delaware 19801
Joshua S. Margolin
(302) 888-6500
Kimberly E. Carson
51 Madison Avenue, 22nd Floor
Attorneys for Intervenors Sofreh LP and
New York, New York 10010
Stephen Russell
(212) 849-7000

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