VCSA Vacasa Inc

---

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): December 30, 2024

___________________________________

Vacasa, Inc.

(Exact name of registrant as specified in its charter)

___________________________________

850 NW 13th Avenue

Portland, OR 097209

(Address of Principal Executive Offices) (Zip Code)

(503) 946-3650

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

___________________________________

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:

Securities registered pursuant to Section 12(b) of the Act:

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (Sec.230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (Sec.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. ☒

---

Agreement and Plan of Merger

On December 30, 2024, Vacasa, Inc. (the “Company”) and Vacasa Holdings LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Company LLC”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Casago Holdings, LLC, a Delaware limited liability company (“Parent”), Vista Merger Sub II Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Company Merger Sub”), and Vista Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“LLC Merger Sub” and collectively with Company Merger Sub, the “Merger Subs”). Capitalized terms used and not otherwise defined herein have the meaning set forth in the Merger Agreement, which is attached hereto as Exhibit 2.1.

Upon the terms and subject to the conditions set forth in the Merger Agreement, (a) LLC Merger Sub will merge with and into Company LLC (the “LLC Merger”), with Company LLC surviving the LLC Merger as a wholly owned subsidiary of Parent and (b) Company Merger Sub will merge with and into the Company (the “Company Merger” and together with the LLC Merger, the “Mergers”), with the Company surviving the Company Merger.

If the Mergers are consummated, the Class A Common Stock will be delisted from Nasdaq and deregistered under the Exchange Act of 1934, as amended (the “Exchange Act”) as promptly as practicable after the Company Merger Effective Time.

Merger Consideration; Effect on Capital Stock

At the effective time of the Company Merger (the “Company Merger Effective Time”), (a) each share of Class A common stock, par value $0.00001 per share, of the Company (the “Class A Common Stock”) issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive $5.02 in cash, without interest, subject to potential downward adjustment in accordance with the terms and conditions set forth in the Merger Agreement, as further detailed below (as adjusted, the “Merger Consideration”), and (b) each share of Class B common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock”) issued and outstanding immediately prior to the Company Merger Effective Time will automatically be canceled and cease to exist, as further detailed below. At the effective time of the LLC Merger (the “LLC Merger Effective Time”), each of the Common Units and Class G Units of Company LLC (each, a “Company LLC Unit”) issued and outstanding immediately prior to the LLC Merger Effective Time and after the Company LLC Units Redemptions, other than (i) the Rollover Units, (ii) the Company LLC Units owned by Parent or its wholly owned subsidiaries and (iii) the Company LLC Units owned by the Company or any of its wholly owned subsidiaries, will automatically be canceled and forfeited for no consideration.

The Merger Consideration is subject to potential downward adjustment based on the number of homes under management by the Company and its subsidiaries (the “Unit Count”) as of twelve business days prior to the anticipated closing date (such date, the “Adjustment Measurement Date”).  The Merger Consideration will be reduced by $0.10 for every 500 units that the Unit Count falls below 32,000 units, which top-line number will be reduced by 600 units at the start of each month after March 31, 2025.  Additionally, the Merger Consideration is subject to a downward adjustment if the Company’s Liquidity (as defined in the Company Credit Agreement) is below $15,000,000 as of the last liquidity measurement of the Company prior to the Adjustment Measurement Date. The Company will issue a press release prior to the closing of the Mergers (the “Closing”) announcing the final Merger Consideration.  As of December 23, 2024, the Unit Count of the Company was 36,510.

Following the Rollover and immediately prior to and conditioned upon the LLC Merger Effective Time, the Company will require each member of Company LLC (other than the Company and its wholly owned subsidiaries and Parent and its wholly owned subsidiaries) to effect a Redemption (as defined in the Fourth Amended and Restated Limited Liability Company Agreement of Company LLC, dated as of December 6, 2021, as amended (the “Company LLC Agreement”)) of all outstanding Common Units held by such member, other than the Rollover Units, together with, as applicable, a corresponding number of shares of Class B Common Stock, pursuant to which such Common Units and such shares of Class B Common Stock will be exchanged for shares of Class A Common Stock in accordance with the Company LLC Agreement and the former holders of such Common Units and shares of Class B Common Stock will be entitled to receive the Merger Consideration in accordance with the Merger Agreement (the “Company LLC Units Redemptions”).

Following the consummation of the Company LLC Units Redemptions and in accordance with the Amended and Restated Certificate of Incorporation of the Company, dated as of December 6, 2021, as amended (the “Company Charter”), immediately prior to the Closing, each share of Class G common stock, par value $0.00001 per share, of the Company (the “Class G Common Stock” and collectively with the Class A Common Stock and Class B Common Stock, the “Company Stock”) will automatically convert into shares of Class A Common Stock at the Class G Strategic Transaction Ratio (as defined in the Company Charter) and the former holders of Class G Common Stock will be entitled to receive the Merger Consideration in accordance with the Merger Agreement (the “Class G Conversions”). Immediately following the Class G Conversions and immediately prior to the Closing, Company LLC will be deemed to issue to the Company a number of Common Units equal to the number of shares of Class A Common Stock issued by the Company in connection with the Class G Conversions in accordance with Section 4.01(a) of the Company LLC Agreement (the “Issuance”).

Treatment of Company Equity Awards

At the Company Merger Effective Time, as a result of the Company Merger, (a) each Company RSU that is outstanding and vested, but not yet settled, as of immediately prior to the Company Merger Effective Time (each, a “Vested Company RSU”), and each Company PSU that is outstanding and vested, but not yet settled, as of immediately prior to the Company Merger Effective Time (each, a “Vested Company PSU”), will automatically be canceled and converted into the right to receive an amount of cash equal to the Merger Consideration, (b) each award of Company RSUs, as of immediately prior to the Company Merger Effective Time, that is not a Vested Company RSU (an “Unvested Company RSU”) will automatically be canceled and converted into the right to receive, for each share of Class A Common Stock underlying the award, an amount of cash equal to the Merger Consideration (the “RSU Cash Award”) which will, subject to the holder’s continued service, vest and become payable at the same time the corresponding portion of the award of the Unvested Company RSUs would have vested pursuant to its terms, (c) each Company PSU that, as of immediately prior to the Company Merger Effective Time, is not a Vested Company PSU (each, an “Unvested Company PSU”) and that is subject to one or more performance goals that are based on the trading price of the Class A Common Stock (each, a “Share Price Company PSU”) will automatically be canceled without payment therefor, and (d) each award of Unvested Company PSUs (other than Share Price Company PSUs) that is outstanding as of immediately prior to the Company Merger Effective Time will automatically be canceled and converted into the right to receive, for each share of Class A Common Stock underlying the award (with the number of shares calculated based on the attainment of target performance levels), an amount of cash equal to the Merger Consideration (each, a “PSU Cash Award”), which will, subject to the holder’s continued service, vest and become payable at the same time as the corresponding portion of the award of Unvested Company PSUs would have vested pursuant to its time-based vesting terms (including any accelerated vesting terms and conditions).

Further, at the Company Merger Effective Time, (i) each Company Option that is outstanding and unexercised as of immediately prior to the Company Merger Effective Time will automatically be canceled and converted into the right to receive an amount in cash equal to the product of (a) the number of shares of Class A Common Stock subject to such Company Option as of immediately prior to the Company Merger Effective Time, multiplied by (b) the excess (if any) of the Merger Consideration over the per share exercise price of such Company Option. Each (i) Company Option that is outstanding and unexercised as of immediately prior to the Company Merger Effective Time with a per share exercise price that is equal to or greater than the Merger Consideration, and (ii) each Company SAR that is outstanding as of immediately prior to the Company Merger Effective Time, will, as of the Company Merger Effective Time, be canceled without payment therefor.

Recommendation of the Special Committee and the Company Board

A special committee (the “Special Committee”) of the board of directors of the Company (the “Company Board”), comprised solely of disinterested and independent members of the Company Board, unanimously (a) recommended that the Company Board approve and declare advisable the Merger Agreement and the transactions contemplated thereby, including the Mergers, and (b) recommended that, subject to Company Board approval, the Company Board submit the Merger Agreement to the stockholders of the Company for their adoption and recommend that the stockholders of the Company vote in favor of adoption of the Merger Agreement. The Company Board, acting on the recommendation of the Special Committee, (a) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Mergers, (b) authorized and approved the execution, delivery and performance by the Company and Company LLC of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Mergers, upon the terms and subject to the conditions contained therein, (c) directed that the adoption of the Merger Agreement be submitted to a vote of the stockholders of the Company at a meeting of the stockholders of the Company or, if the Company receives executed Stockholder Consents sufficient to obtain the Company Stockholder Approvals on or prior to the fourteenth day following the date of the Merger Agreement, through written consent, and (d) recommended that the stockholders of the Company vote in favor of the adoption of the Merger Agreement. Both the Special Committee and the Company Board determined that the Merger Agreement and the transactions contemplated thereby, including the Mergers, are fair to, and in the best interests of, the Company and its Unaffiliated Stockholders (as defined in the Merger Agreement).

Conditions to the Mergers

Consummation of the Mergers is subject to the satisfaction or, if permitted by law, waiver by the Company, Parent, or both, of a number of conditions, including, among other customary closing conditions, (a) (i) the adoption of the Merger Agreement by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class A Common Stock and Class B Common Stock, voting together as a single class, and entitled to vote thereon, (ii) the adoption of the Merger Agreement and the waiver of any applicable provision of Section 5.1(d) of the Company Charter by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class A Common Stock, voting as a single class, and (iii) the adoption of the Merger Agreement by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class B Common Stock, voting together as a single class (collectively, the “Company Stockholder Approvals”), (b) the absence of any order or other action that is in effect (whether temporary, preliminary or permanent) by a governmental authority restraining, enjoining or otherwise prohibiting the consummation of the Mergers, (c) the absence of a material adverse effect of the Company since the date of the Merger Agreement, (d) the occurrence of the Company LLC Units Redemptions, (e) the absence of termination or acceleration of the Company Credit Agreement by the lenders thereunder, and the becoming effective of the amendments set forth in Amendment No. 4 to the Company Credit Agreement at or substantially concurrently with closing (including any amendments made in accordance with the Merger Agreement), (f) the Unit Count not being less than 24,000 as of Adjustment Measurement Date, and (g) the performance by the Company of its obligations, including payoff thereof in accordance with the Merger Agreement, relating to the payoff letters with respect to the indebtedness in respect of the convertible notes held by Davidson Kempner Capital Management in accordance with the terms of the Merger Agreement. Moreover, each party’s obligation to consummate the Mergers is subject to certain other conditions, including the accuracy of the other party’s representations and warranties (subject to certain materiality or other qualifiers) and the other party’s compliance with its covenants and agreements contained in the Merger Agreement (subject to certain materiality qualifiers).

Representations and Warranties; Covenants

The Company has made various representations and warranties and agreed to certain covenants in the Merger Agreement, including covenants relating to the Company’s conduct of its business between the date of the Merger Agreement and the earlier of the date on which the Closing occurs and the termination of the Merger Agreement and other matters.

Under the Merger Agreement, the Company will file a preliminary proxy statement no later than 36 calendar days following the execution of the Merger Agreement; provided, however, that if the Company receives a sufficient amount of executed written consents from stockholders of the Company to obtain the Company Stockholder Approvals by the 14th day following the date of the Merger Agreement, then the Company will file an information statement on Schedule 14C in lieu of filing such proxy statement.

Until the Company Merger Effective Time or the earlier termination of the Merger Agreement, the Company has agreed not to solicit alternative Acquisition Proposals (as such term is defined in the Merger Agreement) from third parties or provide information to, or participate in discussions and engage in negotiations with, third parties regarding any alternative Acquisition Proposals, subject to certain exceptions if failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations under applicable law. Under the Merger Agreement, the Company and Parent have agreed to cooperate in good faith to explore the potential franchising of certain assets of the Company following the Closing.

Termination Rights

The Merger Agreement contains certain termination rights for the parties, including, among others, the right of either party, subject to specified limitations, to terminate the Merger Agreement if the Mergers are not consummated on or before June 30, 2025, which date may be extended in certain circumstances in accordance with the Merger Agreement, or if the Unit Count falls below 24,000 as of the Adjustment Measurement Date or for two consecutive months. The Merger Agreement provides that upon the termination of the Merger Agreement in specified circumstances, including (a) termination by the Company to accept and enter into a definitive agreement with respect to a Superior Proposal (as such term is defined in the Merger Agreement) or termination by Parent following a Change of Recommendation (as such term is defined in the Merger Agreement) or the occurrence of other, customary circumstances, the Company must pay Parent a termination fee of $4,077,500, and (b) termination by the Company in the event of a Parent terminable breach or termination by the Company or Parent as a result of the Parent’s failure to close the Mergers, Parent must pay the Company a termination fee of $5,825,000.

Limited Guarantees; Equity Commitment Letters

Certain equity financing sources of Parent (the “Guarantors”) have delivered to the Company (a) a limited guarantee in favor of the Company and pursuant to which the Guarantors are guaranteeing certain obligations of Parent and Merger Subs in connection with the Merger Agreement and (b) an executed equity commitment letter between Parent and each of the Guarantors pursuant to which the Guarantors have, together, committed to invest sufficient funds in Parent to finance a portion of the Merger Consideration.

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.

The Merger Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company or Company LLC. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of that agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, Company LLC, Parent or Merger Subs or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

Support Agreements

As a condition and inducement to Parent’s willingness to enter into the Merger Agreement and concurrently with the execution and delivery of the Merger Agreement, certain existing stockholders of the Company (collectively, the “Rollover Stockholders”), entered into those certain Support Agreements with the Company, Parent and the other parties thereto, pursuant to which, among other things, the Rollover Stockholders have agreed to support the transactions contemplated by the Merger Agreement and vote in favor of the matters to be submitted to the Company’s stockholders in connection with the Mergers, refrain from soliciting or supporting other Acquisition Proposals and contribute, directly or indirectly, and immediately prior to the Company LLC Units Redemptions, the Class G Conversions, the Issuance and the LLC Merger Effective Time, all of the shares of Company Stock and Company LLC Units held by them (such units, the “Rollover Units”) to Parent in exchange for certain equity interests of such owner of Parent, on the terms and subject to the conditions set forth in the Support Agreements and thereafter such Company Stock and Company LLC Units shall be contributed to Parent.

The Support Agreements will terminate upon the earliest to occur of the Closing, the valid termination of the Merger Agreement in accordance with its terms, and an amendment to the Merger Agreement without the prior written consent of the Rollover Stockholders that reduces the amount of the Merger Consideration or changes the form of the Merger Consideration or the written consent of the parties thereto.

The foregoing description of the Support Agreements does not purport to be complete and is qualified in its entirety by reference to the Support Agreements, which are attached hereto as Exhibits 10.1, 10.2 and 10.3 and are incorporated herein by reference.

Amendment No. 1 to Tax Receivable Agreement

Concurrently with the execution and delivery of the Merger Agreement, the Company and Company LLC entered into that certain Amendment No 1. to the Tax Receivable Agreement (as defined below) (the “TRA Amendment”) with SLP Venice Holdings, L.P. and the Majority TRA Holders signatory thereto, pursuant to which the Majority TRA Holders agreed to amend the Tax Receivable Agreement, dated as of December 6, 2021 (the “Tax Receivable Agreement”), by and among the Company, Company LLC and the other parties thereto, to provide for the termination of the Tax Receivable Agreement and release the Company, Company LLC and the other parties thereto from any further rights or obligations under the Tax Receivable Agreement, including with respect to the payment of all or any portion of any Early Termination Payment or any other amounts owed pursuant to the Tax Receivable Agreement. If the Merger Agreement is terminated prior to the Closing, the TRA Amendment will be void and of no force and effect and the Tax Receivable Agreement will remain in full force and effect as if the TRA Amendment had not become effective.

The foregoing description of the TRA Amendment does not purport to be complete and is qualified in its entirety by reference to a form of the TRA Amendment, which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.

Amendment No. 4 to Revolving Credit Agreement

On December 30, 2024, Company LLC and its wholly owned subsidiary V-Revolver Sub LLC (the “Borrower”), entered into Amendment No. 4 (the “Credit Agreement Amendment”) to the revolving credit agreement, dated as of October 7, 2021 (as amended, the “Credit Agreement”), among Company LLC, the Borrower, each lender party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and issuing bank, which provides for borrowings under a senior secured revolving credit facility that may be borrowed and repaid from time to time.

Upon the consummation of the transactions contemplated by the Merger Agreement, the amendments set forth in the Credit Agreement Amendment shall automatically be deemed to have been made operative and the Credit Agreement will be amended to, among other things, prevent the consummation of the transactions set forth in the Merger Agreement from triggering a change in control event of default under the Credit Agreement.

The foregoing description of the Credit Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to a form of the Credit Agreement Amendment, which is attached hereto as Exhibit 10.5 and is incorporated herein by reference.

Item 9.01

Financial Statements and Exhibits.

Exhibit No.	Description
2.1*	Agreement and Plan of Merger, dated as of December 30, 2024, by and among Vacasa, Inc., Vacasa Holdings LLC, Casago Holdings, LLC, Vista Merger Sub II Inc. and Vista Merger Sub LLC.*
10.1	Support Agreement, dated as of December 30, 2024, by and among Vacasa, Inc., Casago Holdings, LLC, SLP V Venice Feeder I, L.P. and SLP Venice Holdings L.P.
10.2	Support Agreement, dated as of December 30, 2024, by and among Vacasa, Inc., Casago Holdings, LLC, RW Vacasa AIV L.P., RW Industrious Blocker L.P., RCP III Vacasa AIV L.P., Riverwood Capital Partners II (Parallel - B) L.P., Riverwood Capital Partners III (Parallel - B) L.P., RCP III (A) Vacasa AIV L.P., RCP III Blocker Feeder L.P. and RCP III (A) Blocker Feeder L.P.
10.3	Support Agreement, dated as of December 30, 2024, by and among Vacasa, Inc., Casago Holdings, LLC, Level Equity Opportunities Fund 2015, L.P., Level Equity Opportunities Fund 2018, L.P., LEGP II AIV(B), L.P., LEGP I VCS, LLC, LEGP II VCS, LLC and Level Equity - VCS Investors, LLC.
10.4	Amendment No. 1 to Tax Receivable Agreement, dated as of December 30, 2024, by and among Vacasa, Inc., Vacasa Holdings LLC and the other parties thereto.
10.5	Amendment No. 4 to Revolving Credit Agreement, dated as of December 30, 2024, by and between Vacasa Holdings LLC, V-Revolver Sub LLC, each lender party thereto and JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and issuing bank.
99.1	Press Release dated December 30, 2024
104	Cover Page Interactive Data File - the cover page iXBRL tags are embedded within the inline XBRL document.

	VACASA, INC.
	By:	/s/ Robert Greyber
	Name:	Robert Greyber
	Title:	Chief Executive Officer

(g)         Breach by Representatives. The Company agrees that any breach of this Section 6.2 by any director, officer or other Representative of the Company will be deemed to be a breach of this Section 6.2 by the Company. The Company will not authorize, direct or knowingly permit any consultant or employee of the Company to breach this Section 6.2, and upon becoming aware of any breach or threatened breach of this Section 6.2 by a Representative of the Company, shall use its reasonable best efforts to stop such breach or threatened breach.

 

6.3.        Proxy Statement Filing; Schedule 13e-3; Information Supplied; Information Statement.

 

(a)         The Company shall prepare and file with the SEC, and Parent shall reasonably cooperate with the Company in connection therewith, as promptly as reasonably practicable after the date of this Agreement (and in any event, no later than 36 calendar days thereafter), a proxy statement in preliminary form relating to the Company Stockholders Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”). The Company will use its commercially reasonable efforts to have the preliminary Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing.

 

(b)        The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Proxy Statement (and in any event, no later than 36 calendar days after the date of this Agreement), jointly prepare and file with the SEC a Rule 13e-3 Transaction Statement on Schedule 13e-3 (such transaction statement, including any amendment or supplement thereto, the “Schedule 13e-3”) relating to the transactions contemplated by this Agreement.

 

(c)         The Company shall promptly notify Parent, and Parent shall promptly notify the Company, as applicable, of the receipt of all comments from the SEC with respect to the Proxy Statement or the Schedule 13e-3 and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to the other Party copies of all correspondence between such Party or any of its Representatives and the SEC with respect to the Proxy Statement or the Schedule 13e-3, as applicable. Each of the Company and Parent shall provide Parent and the Company, as applicable, and their respective outside legal counsel and other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Schedule 13e-3). The Company and Parent shall use their respective reasonable best efforts to promptly provide responses to the SEC with respect to all comments received on the Proxy Statement and the Schedule 13e-3 from the SEC and the Company shall cause the definitive Proxy Statement and the Schedule 13e-3 to be mailed to the stockholders of the Company as promptly as possible after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, which confirmation will be deemed to occur if the SEC has not affirmatively notified the Company prior to the tenth calendar day after filing the Proxy Statement that the SEC will or will not be reviewing the Proxy Statement (such date, the “SEC Clearance Date”).

 

(d)         The Company agrees, as to itself and its Subsidiaries, that the Proxy Statement will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company and Parent agree, as to themselves and their Affiliates, that the Schedule 13e-3 will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company, Parent and Merger Subs shall ensure that none of the information supplied by it for inclusion in the Proxy Statement or the Schedule 13e-3 will, at the date of mailing to stockholders of the Company or at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company assumes no responsibility with respect to information supplied in writing by or on behalf of Parent, its Affiliates or its or their respective Representatives for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13e-3. If at any time prior to the Company Stockholders Meeting, any information relating to the Company or Parent, or any of their respective Affiliates or its or their respective Representatives, should be discovered by a Party, which information should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13e-3, as applicable, so that either the Proxy Statement or the Schedule 13e-3 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information shall as promptly as practicable following such discovery notify the other Party or Parties (as the case may be) and after such notification, as and to the extent required by applicable Law, (i) the Company shall promptly prepare (with the assistance of Parent as provided for in this Section 6.3) an amendment or supplement to the Proxy Statement, (ii) the Company and Parent shall promptly prepare an amendment or supplement to the Schedule 13e-3 or (iii) the Company shall cause the Proxy Statement or the Schedule 13e-3 as so amended or supplemented to be filed with the SEC and to be disseminated to its stockholders.

 

(e)        The Company shall provide Parent with a reasonable opportunity to review drafts of the Proxy Statement and any other documents related to the Company Stockholders Meeting and will consider in good faith any comments provided by Parent in connection with such review. The Company and Parent shall (i) provide each other with a reasonable opportunity to review drafts of the Schedule 13e-3 prior to filing the Schedule 13e-3 with the SEC and (ii) consider in good faith all comments thereto reasonably proposed by the other Party, its outside legal counsel and its other Representatives.

 

(f)        Notwithstanding anything in this Section 6.3 to the contrary, if the Company receives executed written consents from stockholders sufficient to obtain the Company Stockholder Approval (“Stockholder Consents”) on or prior to the 14th day following the date of this Agreement, the Company shall, in lieu of filing the Proxy Statement, file with the SEC an information statement containing (A) the information specified in Schedule 14C under the Exchange Act concerning the Stockholder Consents and the Mergers, (B) the notice of action by written consent required by Section 228(e) of the DGCL and (C) the notice of availability of appraisal rights and related disclosure required by Section 262 of the DGCL (the “Information Statement”).  In the event the Stockholder Consents are obtained and the Company files the Information Statement, the provisions of this Agreement that apply to the Proxy Statement shall instead apply to the Information Statement.

 

6.4.       Company Stockholders Meeting. Subject to Section 6.3(f), the Company will take, in accordance with applicable Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of its stockholders (including any adjournment, recess, postponement or other delay thereof, the “Company Stockholders Meeting”) as promptly as reasonably practicable after the SEC Clearance Date, to consider and vote upon the adoption of this Agreement and to cause such vote to be taken, and shall not postpone or adjourn such meeting, except to the extent advised by counsel to be necessary to comply with Law or pursuant to the following sentence. Notwithstanding anything to the contrary in this Agreement, (a) the Company (acting on the recommendation of the Special Committee) may (and if requested by Parent on no more than two occasions, shall for a reasonable period of time) adjourn, recess, postpone or otherwise delay the Company Stockholders Meeting for a reasonable period to solicit additional proxies, if the Company or Parent, as applicable, reasonably believes there will be insufficient shares of Company Stock represented (either in person or by proxy) to constitute a quorum necessary either to conduct the business of the Company Stockholders Meeting or to obtain the Company Stockholder Approvals (it being understood that the Company may not postpone or adjourn the Company Stockholder Meeting more than two times pursuant to this clause (a) without Parent’s prior written consent) and (b) the Company (acting on the recommendation of the Special Committee) may adjourn, recess, postpone or otherwise delay the Company Stockholders Meeting to the extent necessary to ensure that any supplement or amendment to the Proxy Statement that is required by applicable Law is provided to the stockholders of the Company within a reasonable amount of time in advance of the Company Stockholders Meeting; provided that, in each case of the foregoing clauses (a) and (b), unless agreed in writing by the Company and Parent, any single such adjournment, recess or postponement shall be for a period of no more than ten Business Days. Subject to Section 6.3(e), the Company Board shall include the Company Recommendation in the Proxy Statement and the Schedule 13e-3 and shall use reasonable best efforts to obtain the Company Stockholder Approvals. Without the prior written consent of Parent, the matters required to obtain Company Stockholder Approvals shall be the only matters (other than matters of procedure, including adjournment or postponement thereof, and matters required by Law to be voted on by the Company stockholders in connection with the adoption of this Agreement) that the Company shall propose to be acted on by the Company stockholders at the Company Stockholders Meeting. The Company shall cooperate and keep Parent reasonably informed regarding its solicitation efforts and voting results following mailing of the definitive Proxy Statement.

 

6.5.         Efforts; Cooperation; Antitrust Matters.

 

(a)        Subject to the terms of this Agreement, each of the Company, Parent and Merger Subs shall use reasonable best efforts to: (i) take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions precedent set forth in Article VII to be satisfied and consummate and make effective the Mergers and any other transactions contemplated by this Agreement when required in accordance with Article VII as promptly as reasonably practicable and in any event prior to the Outside Date; (ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, approvals, authorizations, clearances or Orders advisable or required to be obtained by Parent, the Company or any of their respective Affiliates, including under the Antitrust Laws (including by making an appropriate response to requests from any such Governmental Authorities); (iii) avoid or defend against, as applicable, any Action by any Governmental Authority, in connection with the authorization, execution and delivery of this Agreement and the consummation of the Mergers or any other transactions contemplated by this Agreement, including the Mergers; and (iv) as promptly as reasonably practicable, make or cause to be made any other required or advisable registrations, declarations, submissions and filings with respect to the Mergers or any other transactions contemplated by this Agreement required under the Exchange Act, any other applicable federal or state securities Laws, and any other applicable Law. The Company and its Subsidiaries shall reasonably cooperate to facilitate the receipt by Parent and its Affiliates of any approvals or to take any other reasonable actions required to permit Parent and its Affiliates (including the Company and its Subsidiaries following the Closing) to operate in compliance with applicable Law following the consummation of the Mergers.

 

(b)         Without limiting the generality of anything contained in this Section 6.5, Parent and the Company shall: (i) give the other Parties prompt notice of the making or commencement of any request or proceeding by or before any Governmental Authority with respect to the Mergers or any other transactions contemplated by this Agreement; (ii) keep the other Parties informed as to the status of any such request or proceeding; (iii) give the other Parties notice and an opportunity to participate in any substantive communication made to the United States Federal Trade Commission (the “FTC”), the Antitrust Division of the United States Department of Justice (the “DOJ”), or any other domestic, foreign or supranational Governmental Authority pursuant to any Antitrust Laws regarding the Mergers or any other transactions contemplated by this Agreement and (iv) promptly notify the other Parties of any communication from the FTC, the DOJ or any other domestic, foreign or supranational Governmental Authority pursuant to any Antitrust Laws regarding the Mergers or any other transactions contemplated by this Agreement. Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and each will consult with the other on and consider in good faith the views of the other in connection with, any filing made with, or substantive written materials submitted or substantive communication made to any Governmental Authority pursuant to any Antitrust Laws in connection with the Mergers or any other transactions contemplated by this Agreement (including the Proxy Statement and the Schedule 13e-3). In addition, except as may be prohibited by any Governmental Authority or by any applicable Law, each Party will permit authorized representatives of the other Parties to be present at each non-ministerial meeting, conference, videoconference, or telephone call and to have access to and be consulted in connection with any substantive presentation, letter, white paper, or proposal made or submitted to any Governmental Authority pursuant to any Antitrust Laws in connection with such request or proceeding. In exercising the foregoing rights, each of the Company and Parent shall act reasonably and as promptly as practicable. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.5 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be); provided that materials provided pursuant to this Section 6.5 may be redacted (x) to remove references concerning the valuation of the Company, (y) as necessary to comply with contractual obligations and (z) as necessary to address reasonable privilege concerns.

 

(c)        Subject to applicable Laws and as required by any Governmental Authority, the Company, on the one hand, and Parent, on the other hand, each shall keep the other apprised of the status of matters relating to completion of the Mergers and the other transactions contemplated hereby, including promptly furnishing the other with copies of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Mergers or the other transactions contemplated by this Agreement or (ii) upon receiving any material notice or other material communication from any third party whose consent or approval is required for consummation of the Mergers or the other transactions contemplated by this Agreement or any Governmental Authority in each case in connection with such consents or the transactions contemplated by this Agreement.

 

(d)         If any objections are asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law, or if any lawsuit or other proceeding, whether judicial or administrative, is instituted (or threatened to be instituted), including any proceeding by any Governmental Authority or private party, challenging the Mergers or any other transactions contemplated by this Agreement as violative of any Antitrust Law or which would otherwise prohibit or materially impair or delay in connection with any Antitrust Law the consummation of the Mergers or any other transactions contemplated by this Agreement, each of Parent and the Company shall (and shall cause their respective Subsidiaries to) use their respective reasonable best efforts to resolve any such objections.

 

(e)         For purposes of this Agreement, “Antitrust Law” means the Sherman Antitrust Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, the Federal Trade Commission Act of 1914, as amended, and all other federal, state, foreign or supranational statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws, including any antitrust, competition, trade or foreign investment Laws and regulations that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, or (ii) regulate foreign investments.

 

6.6.         Information; Access and Reports.

 

(a)        The Company and Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Affiliates, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the Schedule 13e-3 or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Affiliates to any Governmental Authority in connection with the Mergers and any other transactions contemplated by this Agreement.

 

(b)        Subject to applicable Law, upon reasonable notice, the Company shall (and shall cause its Subsidiaries to) afford Parent’s officers and other authorized Representatives reasonable access, during normal business hours and consistent with applicable Law, upon reasonable advance notice, from the date of this Agreement until the earlier of the Company Merger Effective Time and the termination of this Agreement in accordance with Article VIII, to its employees and other personnel and contracts and other books and records, including, solely to the extent consistent with Section 6.8 of the Company Disclosure Schedule, any information reasonably requested by Parent or its Representatives in connection with post-Closing integration and transition matters (other than any such matters that relate to the negotiation and execution of this Agreement (including with respect to the consideration or valuation of the Mergers or any financial or strategic alternatives thereto)) or, subject to Section 6.2, any Acquisition Proposal or Superior Proposal); provided that the Company shall not be required to afford such access or furnish such information if it would unreasonably disrupt the operations of the Company or any of its Subsidiaries and no investigation pursuant to this Section 6.6 shall affect or be deemed to modify any representation or warranty made by the Company herein, and provided, further, that the foregoing shall not require the Company (i) to permit any inspection, or to disclose any information, that would reasonably be expected to result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality if the Company shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure or (ii) to disclose any privileged information of the Company or any of its Subsidiaries; provided that in the event the Company does not disclose certain information pursuant to the foregoing clause (i) and clause (ii), at Parent’s reasonable request the Parties shall use commercially reasonable efforts to implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the non-disclosure to the greatest extent reasonably possible, including by arrangement of appropriate clean room procedures, redaction of text from documents or entry into a customary joint defense agreement with respect to any information to be so provided. Notwithstanding the foregoing, Parent and its Representatives shall not be permitted to perform any invasive on-site procedures (including any invasive on-site study) with respect to any property of the Company or its Subsidiaries without the Company’s prior written consent. All requests for information made pursuant to this Section 6.6 shall be directed to the executive officer or other Person designated by the Company. The Non-Disclosure Agreement, dated as of June 27, 2024, by and between the Company and Casago International, LLC (the “Confidentiality Agreement”), shall apply with respect to information furnished by the Company, its Subsidiaries and their respective Representatives hereunder.

 

(c)         To the extent that any of the information or material furnished pursuant to this Section 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.

 

6.7.       Stock Exchange Delisting. The Company and Parent shall cooperate to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable under applicable Laws and rules and policies of Nasdaq to enable the delisting by the Surviving Corporation of the shares of Class A Common Stock from Nasdaq and the deregistration of the shares of Class A Common Stock under the Exchange Act as promptly as practicable after the Company Merger Effective Time.

 

6.8.       Publicity. The initial press release regarding the Mergers shall be a joint press release of Parent and the Company reasonably acceptable to Parent and the Company. Thereafter, neither the Company nor Parent, nor any of their respective Affiliates or Representatives, shall issue any press release or make any other public announcement or public statement (to the extent not previously publicly disclosed or made in accordance with this Agreement) or make any internal announcement to employees, in each case, with respect to this Agreement or the Mergers or any other transactions contemplated by this Agreement without consulting with each other and providing meaningful opportunity for review and giving due consideration to reasonable comment by the other Party, except (a) as such press release or other public announcement may be required by applicable Law, in which case the Party required to issue the release or make the announcement shall use commercially reasonable efforts to provide the other Party with a reasonable opportunity to review and comment on such release or announcement in advance of its issuance and shall give reasonable and good-faith consideration to any such comments proposed by the other Party, (b) subject to Section 6.2, if applicable under the circumstances, in connection with a Change of Recommendation or Acquisition Proposal or (c) any disclosure of information concerning this Agreement in connection with any dispute between the Parties regarding this Agreement. Notwithstanding anything to the contrary in this Section 6.8, (i) each of the Parties may make public statements in response to questions by the press, analysts, investors, business partners or those attending industry conferences or financial analyst conference calls, so long as any such statements (x) are consistent with previous press releases, public disclosures or public statements made jointly by Parent and the Company or to the extent that they have been reviewed and previously approved by both Parent and the Company and (y) do not reveal material, nonpublic information regarding the other Parties, the Mergers or the other transactions contemplated hereby and (ii) Parent, Merger Subs and their respective Affiliates may, without consultation or consent, make ordinary course disclosure and communication to existing or prospective general or limited partners, equity holders, members, managers and investors of such Person or any Affiliates of such Person, in each case who are subject to customary confidentiality restrictions and so long as any such statements are consistent with previous press releases, public disclosures or public statements made jointly by Parent and the Company. In addition, the Parties shall cooperate in good faith with respect to the terms and conditions set forth on Section 6.8 of the Company Disclosure Schedule.

 

6.9.        Employee Benefits.

 

(a)        Parent agrees that each employee as of immediately prior to the Closing who continues to be employed with the Employer Entities immediately following the Closing (each such employee, a “Continuing Employee”) shall, during the period commencing on the Closing Date and ending on the first anniversary thereof (or the date of termination of employment of the relevant Continuing Employee, if sooner), be provided with (i) a base salary or base wage no less than the base salary or base wage provided to such Continuing Employee by the Employer Entities immediately prior to the Company Merger Effective Time, (ii) target cash bonus opportunities that are no less favorable than the target cash bonus opportunities as in effect for such Continuing Employee immediately prior to the Company Merger Effective Time, and (iii) retirement and health and welfare benefits (other than deferred compensation, defined benefit pension benefits or retiree health and welfare benefits) that are substantially similar in the aggregate to the retirement and health and welfare benefits (other than deferred compensation, defined benefit pension benefits or retiree health and welfare benefits) provided to such Continuing Employee immediately prior to the Company Merger Effective Time. In addition, Parent will take the actions described in Section 6.9(a) of the Company Disclosure Schedule.

 

(b)          Parent shall cause (i) any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates in which Continuing Employees participate in the year in which the Closing Date occurs to be waived with respect to the Continuing Employees and their eligible dependents to the extent such conditions or limitations were waived or satisfied under the corresponding Employee Benefit Plan, (ii) the amount of eligible expenses incurred by each Continuing Employee and his or her eligible dependents during the portion of the plan year ending on the Closing Date that were credited to deductible and maximum out-of-pocket co-insurance requirements under the group health Employee Benefit Plans to be credited for purposes of satisfying the corresponding deductible and maximum out-of-pocket co-insurance requirements under the corresponding benefit plans of Parent and its Affiliates for the applicable plan year and (iii) any of its (or its Affiliates’) employee benefit plans (including disability pay continuation plans) in which the Continuing Employees are entitled to participate to take into account for purposes of eligibility, vesting (other than with respect to future equity awards) and future vacation benefit accrual thereunder, service by such Continuing Employees to the Employer Entities or predecessors as if such service were with Parent, to the same extent and for the same purpose as such service was credited under a comparable Employee Benefit Plan, in each case, except to the extent it would result in a duplication of compensation or benefits.The Parties hereby acknowledge and agree that the transactions contemplated by this Agreement shall constitute a “change in control,” “change of control” or term or concept of similar import of the Company and its Subsidiaries under the terms of the Plans.

 

(c)       Notwithstanding the foregoing, nothing contained in this Agreement shall (i) be treated as an establishment or amendment of any particular Plan, (ii) prevent Parent, the Surviving Corporation or any of their Affiliates from amending or terminating any of their benefit plans or, after the Company Merger Effective Time, any Employee Benefit Plan, in each case, in accordance with their terms, (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to retain the employment of any particular employee or (iv) create any third-party beneficiary rights, including for the benefit of any employee of the Company or any of its Subsidiaries, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to this Section 6.9 or any compensation, terms and conditions of employment and/or benefits that may be provided to any Continuing Employee by Parent, the Surviving Corporation or any of their Affiliates or under any benefit plan that Parent, the Surviving Corporation or any of their Affiliates may maintain.

 

6.10.      Expenses. Except as provided in Section 8.2, whether or not the Mergers are consummated, all fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement and the Mergers and any other transactions contemplated by this Agreement, including all fees and expenses of its Representatives, shall be paid by the Party incurring such fees or expenses, except that (a) costs, fees and expenses incurred in connection with the filing fee for the Proxy Statement and the Schedule 13e-3 and printing and mailing the Proxy Statement and the Schedule 13e-3 shall be borne by Parent, (b) any documented fees, costs and expenses incurred, paid or payable by the Company or its Subsidiaries (including all reasonable and documented attorneys’ and financial advisor fees) (collectively, the “Amendment Fees”) solely in connection with any amendment or refinancing of the Company Credit Agreement in connection with the transactions contemplated by this Agreement shall be borne by Parent and payable by Parent on the earlier of the termination of this Agreement or the Closing Date (as applicable, the “Amendment Fee Payment Date”).

 

6.11.       Indemnification; Directors’ and Officers’ Insurance.

 

(a)         From and after the Company Merger Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless, to the fullest extent permitted under applicable Law and the organizational documents of the Company and each Company Subsidiary in effect on the date of this Agreement, as applicable (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable Law and the organizational documents of the Company and each Company Subsidiary in effect on the date of this Agreement, as applicable, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former director, officer, employee, member, manager, trustee or fiduciary of the Company and its Subsidiaries (or any of their respective employee benefit plans) (each an “Indemnified Party” and collectively, the “Indemnified Parties”), against any costs or expenses (including reasonable and reasonably documented attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of (i) their service as such or their service at the request of the Company or its Subsidiaries as a director, officer, employee, member, manager, trustee or fiduciary of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise or (ii) services performed by such Indemnified Parties at the request of the Company or its Subsidiaries, in each case at or prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective Time, including with respect to the Mergers and any other transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, none of Parent, the Surviving Corporation or any of their respective Affiliates will settle, compromise or consent to the entry of any judgment with respect to, or otherwise seek the termination of, any legal proceeding for which an Indemnified Party sought indemnification pursuant to this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Parties from all liability arising out of such Indemnified Party proceeding. Any determination required to be made with respect to whether the conduct of any Indemnified Party complies or complied with any applicable standard shall be made by independent legal counsel selected by the Surviving Corporation (which counsel shall be reasonably acceptable to such Indemnified Party), the fees and expenses of which shall be paid by the Surviving Corporation or Parent.

 

(b)         Parent and Merger Subs agree that all rights to exculpation or indemnification for acts or omissions occurring at or prior to the Company Merger Effective Time existing as of the date of the Company Merger Effective Time in favor of the Indemnified Parties or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of such Indemnified Parties, as provided in the Company’s or each of its Subsidiaries’ respective certificates of incorporation or bylaws (or comparable organizational or governing documents) or in any Contract, in each case, in effect and provided to Parent as of the date of this Agreement, shall survive the Mergers and the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms. After the Company Merger Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor such obligations to the maximum extent that the Company or applicable Subsidiary would have been permitted to fulfill and honor them by applicable Law. In addition, for six years following the Company Merger Effective Time, Parent shall and shall cause the Surviving Corporation to cause the Charter and Bylaws to contain provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation provisions contained in the certificates of incorporation and bylaws of the Company immediately as of the date of this Agreement. During such six-year period or such period in which an Indemnified Party is asserting a claim for indemnification pursuant to this Section 6.11, whichever is longer, such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the Company Merger Effective Time, except as required by applicable Law.

 

(c)         Prior to the Company Merger Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Company Merger Effective Time to, obtain and fully pay on the Closing Date the premium for “tail” insurance policies for (i) the Company’s existing directors’ and officers’ insurance policies, (ii) the Company’s existing employment practices liability insurance policies, and (iii) the Company’s existing fiduciary liability insurance policies, in each case, for a claims reporting or discovery period of at least six years from and after the Company Merger Effective Time (the “Tail Period”) from one or more insurance carriers with the same or better credit rating as the Company’s insurance carriers as of the date of this Agreement (or, if no such policies are available from insurance carriers with such credit rating, from insurance carriers with the next-highest credit rating then capable of providing such policies) with respect to directors’ and officers’ liability insurance, employment practices liability insurance, and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as the Company’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer, employee, member, manager, trustee or fiduciary of the Company or any of its Subsidiaries (or any of their respective employee benefit plans) by reason of his or her serving in such capacity that existed or occurred at or prior to the Company Merger Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided that in no event shall the Company expend, and in no event shall Parent or the Surviving Corporation be required to expend, for such “tail” insurance policies an aggregate amount in excess of 300% of the annual premium paid by the Company for the calendar year immediately preceding the date of this Agreement (such 300% amount, the “Maximum Premium”); provided, further, that if the amount of such “tail” insurance policies exceed the Maximum Premium, the Surviving Corporation shall obtain policies with the greatest coverage available for a cost not exceeding the Maximum Premium. If the Company and the Surviving Corporation for any reason do not obtain such “tail” insurance policies, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for the Tail Period the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement; provided that in no event shall Parent or the Surviving Corporation be required to expend for all such policies pursuant to this sentence an annual premium amount in excess of 150% of the annual premium paid by the Company for the calendar year immediately preceding the date of this Agreement; and provided, further, that if the annual premiums of such insurance coverage for any given year exceeds such applicable amount, the Surviving Corporation shall obtain policies with the greatest coverage available for a cost not exceeding such applicable amount.

 

(d)       The provisions of this Section 6.11 shall survive the Closing and are intended to be for the benefit of, and enforceable by, each Indemnified Party, and nothing in this Agreement shall affect, and the rights of each Indemnified Party under this Section 6.11 shall be in addition to, any indemnification rights that any such Indemnified Party or may have under the certificates of incorporation or bylaws of the Company or any of its Subsidiaries or any Contract or applicable Law. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.11 shall not be terminated, amended, waived or otherwise modified in such a manner as to adversely affect any Indemnified Party without the consent of such Indemnified Party or principal, except as required by applicable Law. The obligations of the Surviving Corporation, Parent and their respective Subsidiaries pursuant to this Section 6.11 are joint and several. The rights of the Indemnified Parties pursuant to this Section 6.11 will be in addition to, and not in substitution for, any other rights that such persons may have pursuant to (i) the Charter and Bylaws, (ii) the similar organizational documents of the Subsidiaries of the Company, (iii) any and all indemnification agreements entered into with the Company or any of its Subsidiaries made available to Parent as of the date of this Agreement, or (iv) applicable Law.

 

(e)         In the event that Parent or the Surviving Corporation (or any of their respective successors or assigns) shall consolidate or merge with any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger, or transfers at least 50% of its properties and assets to any other Person, then in each case proper provision shall be made so that the continuing or surviving corporation or entity (or its successors or assigns, if applicable), or transferee of such assets, as the case may be, shall assume the obligations set forth in this Section 6.11.

 

6.12.     Stockholder Litigation. The Company shall promptly notify Parent in writing of any stockholder litigation against it or any of its Representatives arising out of or relating to this Agreement, the Mergers or any other transactions contemplated by this Agreement (including by providing copies of all litigation documents served on the Company) and shall keep Parent reasonably informed on an ongoing basis regarding any such stockholder litigation and promptly furnish Parent with copies of external communications received or documents filed. Until the termination of this Agreement in accordance with Article VIII, the Company shall (a) consult with Parent on, and consider in good faith all of Parent’s comments to, all filings or written responses to be made by the Company in connection with any stockholder litigation against the Company and its directors relating to any transaction contemplated by this Agreement, (b) consult with Parent with respect to the proposed strategy, material actions and significant decisions (including relating to defense, settlement or compromise) with respect to any such stockholder litigation, and (c) give Parent the opportunity to participate (but not to control), at Parent’s expense, in the defense, settlement or prosecution of any such stockholder litigation, including by giving Parent the opportunity to attend and participate in any meetings (whether in-person or otherwise), telephone or video calls or other conferences with stockholders’ counsel regarding any settlement of such stockholder litigation. In no event shall the Company enter into or agree to any settlement with respect to such stockholder litigation without Parent’s written consent, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding anything to the contrary in this Section 6.12, any Action relating to the Dissenting Shares will be governed by Section 4.4(f).

 

6.13.       Other Actions by the Company.

 

(a)        Takeover Laws. The Company, the Company Board and the Special Committee will (a) take reasonable actions within their power to ensure that no Takeover Law or any anti-takeover provision in the Company’s certificate of incorporation or bylaws) is or becomes applicable to this Agreement, the Support Agreements, the Mergers or the other transactions contemplated by this Agreement and the Support Agreements; and (b) if the restrictions of any Takeover Law become applicable to this Agreement, the Support Agreements, the Mergers or the other transactions contemplated by this Agreement and the Support Agreements, take reasonable actions within their power to ensure that the Mergers may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise take reasonable actions within their power to minimize the effects of such statute or regulation on the Mergers and the other transactions contemplated by this Agreement and the Support Agreements.

 

(b)         Section 16 Matters. The Company and the Company Board (or a duly formed committee thereof consisting of non-employee directors (as such term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)), shall, prior to the Company Merger Effective Time, take all such actions as may be necessary or appropriate to cause the transactions contemplated by this Agreement and any other dispositions of equity securities of the Company (including derivative securities) in connection with the transactions contemplated by this Agreement by any individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act, to the extent permitted by applicable Law.

 

6.14.       Obligations of Parent.

 

(a)        Parent, in its capacity as the sole stockholder of Company Merger Sub, shall, in accordance with applicable Law and its certificate of incorporation and bylaws, approve and adopt this Agreement by written consent immediately following its execution and shall deliver a copy of such written consent to the Company.

 

(b)       Prior to the Company Merger Effective Time, without the prior written consent of the Company, Parent shall not permit or agree to permit any Person to obtain any equity interests (or rights to obtain any equity interests) in Parent if such action would, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Parent and Merger Subs to consummate the Mergers and any other transactions contemplated by this Agreement.

 

6.15.      Tax Matters.

 

(a)        Parent shall prepare, or cause to be prepared, each Pre-Closing Flow-Through Tax Return required to be filed after the Closing with respect to Company LLC, and each material Pre-Closing Flow-Through Tax Return required to be filed after the Closing with respect to each of its Subsidiaries, in a manner consistent with past practice, except to the extent otherwise required by applicable Law or this Agreement. To the extent applicable and to the extent permissible under Section 706 of the Code, all items of income, gain, loss, deduction and credit allocable to the Company LLC Units held by the Legacy Unitholders immediately prior to the Company LLC Units Redemptions or the Rollover, as applicable, shall be allocated between the Legacy Unitholders, Parent, and the Surviving Corporation based on an interim closing of the books on the Closing Date pursuant to Section 706 of the Code and the Treasury Regulations promulgated thereunder. Parent shall not, and shall cause its Subsidiaries (including, after the Closing, the Surviving Corporation and the Surviving LLC) not to, file or amend any Pre-Closing Flow-Through Tax Return with respect to Company LLC or any of its Subsidiaries in a manner that would reasonably be expected to have a material adverse impact on the Legacy Unitholders without the prior written consent of the Securityholder Representative (such consent not to be unreasonably withheld, conditioned or delayed).

 

(b)        After the Closing, the Securityholder Representative shall be entitled to participate, at its own expense, in any audit, examination, contest, litigation or other proceeding relating to Pre-Closing Flow-Through Tax Returns with respect to Company LLC or any of its Subsidiaries that would reasonably be expected to have a material adverse impact on the Legacy Unitholders (each, a “Pre-Closing Flow-Through Contest”), and none of Parent, the Surviving Corporation, the Surviving LLC or any of their Affiliates shall settle or compromise any such Pre‑Closing Flow-Through Contest in a manner that is reasonably expected to have a material adverse impact on the Legacy Unitholders without the prior written consent of the Securityholder Representative (such consent not to be unreasonably withheld, conditioned or delayed).

 

(c)        The Parties and the Securityholder Representative shall cooperate as and to the extent reasonably requested by any other Party or the Securityholder Representative in connection with the filing of any Tax Returns described in Section 6.15(a) or any Action with respect to the Taxes or Tax Returns of Company LLC or any of its Subsidiaries described in Section 6.15(b). Such cooperation shall include the retention and (upon the other Party’s or the Securityholder Representative’s request) the provision of records and information that are reasonably relevant to any such Tax Return or Action and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

 

(d)        The Parties and Securityholder Representative agree and acknowledge that for U.S. federal (and applicable state and local income tax purposes), the Company LLC Units Redemptions shall be treated as sales or exchanges governed by Sections 1001 and 741 of the Code, and the Parties agree to file all tax returns consistent with this Section 6.15(d) unless otherwise required by applicable law or by a final “determination” within the meaning of Section 1313 of the Code.

 

(e)        At or prior to the Closing, the Company shall request that each of the Legacy Unitholders deliver a properly completed and duly executed IRS Form W-9 or a non-foreign affidavit in form and substance required by Code Sections 1445 and 1446 and the Treasury Regulations thereunder.

 

(f)        Prior to the Rollover, (i) Company LLC shall deliver to the Company and Parent a certificate meeting the requirements of Treasury Regulations Section 1.1445-11T(d)(2)(i) to the effect that 50% or more of the value of the gross assets of Company LLC does not consist of “U.S. real property interests” within the meaning of Section 897(c)(1) of the Code and Treasury Regulations Section 1.897-1(c) (“USRPIs”) or that 90% or more of the value of the gross assets of Company LLC does not consist of USRPIs, plus cash or cash equivalents, and (ii) the Company shall provide to Parent a certificate in compliance with Treasury Regulations Sections 1.1445-2(c) and 1.897-2(h), certifying that the Company is not, and has not been during the relevant period, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.

 

(g)         Notwithstanding anything to the contrary in this Agreement, (i) a breach of the obligations of the Company under Section 6.15(e) or (f) will not be taken into account for purposes of determining whether any conditions set forth in ARTICLE VII have been satisfied and (ii) Parent’s and its Affiliates’ sole recourse in the event of the breach of the obligations of the Company under Section 6.15(e) or (f) will be to to deduct or withhold, or cause to be deducted or withheld, from any amounts otherwise payable pursuant to this Agreement as provided in Section 4.4(g).

 

6.16.       Financing.

 

(a)          Subject to the terms and conditions of this Agreement, each of Parent and Merger Subs will not permit any amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy pursuant to, the Equity Commitment Letters if such amendment, replacement, supplement, modification or waiver would, or would reasonably be expected to, (i) reduce the aggregate net amount of the Equity Financing; (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing or expand the information and/or materials and documents required to be provided by the Company or Company LLC; (iii) amend any other terms of the Equity Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date or (B) make the timely funding of the Equity Financing, or the satisfaction of the conditions to obtaining the Equity Financing, less likely to occur in any respect; or (iv) adversely impact the ability of Parent or any Merger Sub, as applicable, to enforce its rights against (or the ability of the Company or Company LLC to cause the enforcement of such rights against) the other parties to the Equity Commitment Letters or the definitive agreements with respect thereto. Parent shall promptly furnish to the Company a copy of any amendment, replacement, supplement, modification or waiver relating to the Equity Commitment Letters. Any reference in this Agreement to (1) the “Equity Financing” will include the financing contemplated by the Equity Commitment Letters as amended or modified; and (2) “Equity Commitment Letters,” will include such documents as amended or modified.

 

(b)         Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub will use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange, consummate and obtain the Equity Financing on a timely basis, but in any event no later than the Company Merger Effective Time, on the terms and conditions described in the Equity Commitment Letters, including, but not limited to, using its reasonable best efforts to (i) maintain in effect the Equity Commitment Letters in accordance with the terms and subject to the conditions thereof; (ii) comply with its obligations pursuant to the Equity Commitment Letters on or prior to the Company Merger Effective Time; and (iii) enforce its rights pursuant to the Equity Commitment Letters, including by commencing an appropriate legal proceeding against any such breaching Equity Source to compel such breaching Equity Source to provide its portion of the Equity Financing at or prior to the time Closing should occur pursuant to Section 1.3 hereof. Parent and Merger Subs will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Equity Commitment Letters as and when they become due.

 

(c)        Parent must keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Equity Financing. Without limiting the generality of the foregoing, Parent and Merger Subs must give the Company prompt notice in writing (but in any event within two Business Days after the occurrence or discovery of) (i) of any breach (or threatened breach), default (or any event or circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default), cancellation, termination or repudiation by any party to the Equity Commitment Letters or definitive agreements related to the Equity Financing; and (ii) if for any reason Parent or Merger Subs at any time believes that it will not be able to obtain all or any portion of the Equity Financing on the terms, in the manner or from the sources contemplated by the Equity Commitment Letters or any definitive agreements related to the Equity Financing. Parent must provide any information reasonably requested by the Company relating to any of the circumstances referred to in the previous sentence as promptly as reasonably practical (but in any event within two Business Days) after the date that the Company delivers a written request therefor to Parent.

 

(d)         Notwithstanding the foregoing, compliance by Parent and Merger Subs with this Section 6.16 shall not relieve Parent or Merger Subs of their respective obligations to consummate the Mergers whether or not the Equity Financing is available, and Parent and Merger Subs each acknowledge and agree that obtaining the Equity Financing is not a condition to the Closing. If the Equity Financing has not been obtained, Parent and Merger Subs will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VII, to consummate the Mergers.

 

6.17.     Payoff Letters. The Company shall deliver to Parent and Merger Subs on or prior to the Closing Date (with drafts delivered at least five Business Days prior to the Closing Date) copies of payoff letters (the “Payoff Letters”) with respect to the Repaid Indebtedness in customary form reasonably satisfactory to Parent and Merger Subs, which payoff letters shall (a) indicate the total amount required to be paid to fully satisfy all obligations due and payable under the Repaid Indebtedness as of the Anticipated Closing Date (and, if applicable, the daily accrual thereafter) (the “Payoff Amount”) along with wire instructions on where to direct the Payoff Amount, (b) state that upon receipt of the Payoff Amount, the Repaid Indebtedness and all related debt documents shall be discharged and terminated, and (c) provide that all Liens (other than Permitted Liens) and guarantees in connection with the Repaid Indebtedness relating to the assets and properties of the Company or any of the Company Subsidiaries securing the obligations under the Repaid Indebtedness shall be released and terminated upon payment of the Payoff Amount on the Closing Date. To the extent the Payoff Amount shall exceed $38,250,000, the Company shall be responsible for and make timely payment of such excess in accordance with the Payoff Letters (such excess amount, the “Company Owed Payoff Portion”). The Liquidity set forth in the Adjustment Statement shall be reduced by the Company Owed Payoff Portion. The Company shall provide written notice, fifteen days in advance of the Closing Date, as required under the terms of the Convertible Notes of its intention to redeem all of the outstanding Convertible Notes or procure a written waiver of such requirement in form and substance reasonably satisfactory to Parent and promptly provide to Parent an executed copy of such waiver. The Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all customary cooperation reasonably requested by Parent or Merger Subs in connection with this Section 6.17.

 

6.18.       Existing Indebtedness.

 

(a)        Attached hereto as Exhibit D is Amendment No. 4 to the Company Credit Agreement which has been or is being executed simultaneously with the execution of this Agreement. The Company shall not, and shall cause its Affiliates not to, permit or consent to or agree to any amendment, restatement, replacement, supplement, termination or other modification or waiver of any provision or remedy under, the Company Credit Agreement, the Convertible Notes or the Payment Processing Agreement without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), except for any amendment, restatement, replacement, supplement, termination or other modification (x) that in the case of the Company Credit Agreement and the Payment Processing Agreement, is not materially adverse to the Surviving LLC or the Surviving Corporation or (y) with respect to the Payment Processing Agreement, is reasonably necessary to extend the Payment Processing Agreement from its termination date until the Outside Date.

 

(b)          The Company shall (i) promptly, and in any event within one Business Day following the occurrence thereof, notify Parent in writing if at any time prior to the Closing, (1) a Default or Event of Default occurs, together with a reasonably detailed written explanation of the steps the Company proposes to undertake in respect thereof or (2) the lenders under the Company Credit Agreement accelerate or otherwise terminate the Company Credit Agreement, (ii) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to cure or remedy any Default or Event of Default and in the case of the Convertible Notes, maintain compliance with Section 5.2(i) of the Convertible Notes; provided, that any default or penalty interest accrued and payable prior to the Closing with respect to any Event of Default shall be owed by the Company and, in the event the default or penalty interest rate will remain in effect after the Closing, the incremental interest amount owed as a result of such default or penalty interest rate for a theoretical twelve-month period from the Closing Date (calculated based on the trailing twelve-month average amount of borrowings as of the Closing Date that would be subject to the default or penalty interest rate) shall reduce Liquidity as set forth in the Adjustment Statement, (iii) provide Parent with copies of any drafts of any material waiver, amendment or modification of the Company Credit Agreement, the Convertible Notes or the Payment Processing Agreement proposed to be made in respect thereof and give Parent a reasonable opportunity to comment thereon to the extent such waiver, amendment or modification of the Company Credit Agreement, the Convertible Notes or the Payment Processing Agreement is materially adverse to the Parent (such comments not to be unreasonably withheld, delayed or conditioned), and (iv) promptly provide to Parent executed copies of such material waiver, amendment or modification of the Company Credit Agreement, the Convertible Notes or the Payment Processing Agreement. Notwithstanding anything set forth herein, the Company shall remain subject to Section 6.1. Parent shall, and shall cause its Affiliates to, reasonably comply with any requirements or informational requests of the Company’s lenders in connection with Amendment No. 4 to the Company Credit Agreement, including any applicable “know your customer” compliance requirements.

 

6.19.      Company Unit Statements.  Beginning on January 31, 2025 and until the earlier of the Closing Date and the termination of this Agreement in accordance with Article VIII, (a) on the second Business Day of each week, the Company shall deliver to Parent and the Independent Evaluator, if engaged, a written statement, setting forth in reasonably sufficient detail the number of Company Units as of the last Business Day of the immediately preceding week, along with reasonable documentation in support thereof (each such written statement, a “Weekly Company Unit Statement”) and (b) on the first Business Day of each month, the Company shall deliver to Parent a written statement, setting forth in reasonably sufficient detail the number of Company Units as of the last calendar day of the immediately preceding month, along with reasonable documentation in support thereof (each such written statement, a “Monthly Company Unit Statement” and together with the Weekly Company Unit Statements, the “Company Unit Statements”). The statements shall be in the form set forth on Section 6.19 of the Company Disclosure Schedule. Following the delivery of a Company Unit Statement to Parent, the Company shall make available during normal business hours, upon Parent’s reasonable request, the appropriate Representatives of the Company, its Affiliates and their respective Representatives involved in the preparation of such Company Unit Statement. If Parent disputes any portion of a Company Unit Statement, Parent shall raise such dispute with the Company within five Business Days following Parent’s receipt of such Company Unit Statement or, if later, the first date on which Parent becomes aware of facts or circumstances that result in Parent disputing nay portion of a Company Unit Statement, and the Company and Parent shall thereafter negotiate in good faith to resolve such dispute as promptly as practicable.

 

6.20.     Liquidity Statements.  Beginning on January 31, 2025 and until the earlier of the Closing Date and the termination of this Agreement in accordance with Article VIII, on the tenth Business Day of each month, the Company shall deliver to Parent and the Independent Evaluator, if engaged, a written statement, setting forth in reasonably sufficient detail the Liquidity as of the last calendar day of the immediately preceding month, along with reasonable documentation in support thereof (each such written statement, a “Monthly Liquidity Statement”). The statements shall be in the form customarily prepared by the Company for its own Liquidity evaluation purposes. Following the delivery of a Monthly Liquidity Statement to Parent, the Company shall make available during normal business hours, upon Parent’s reasonable request, the appropriate Representatives of the Company, its Affiliates and their respective Representatives involved in the preparation of such Monthly Liquidity Statement. If Parent disputes any portion of a Monthly Liquidity Statement, Parent shall raise such dispute with the Company within five Business Days following Parent’s receipt of such Monthly Liquidity Statement or, if later, the first date on which Parent becomes aware of facts or circumstances that result in Parent disputing nay portion of a Monthly Liquidity Statement, and the Company and Parent shall thereafter negotiate in good faith to resolve such dispute as promptly as practicable.

 

ARTICLE VII
Conditions

 

7.1.        Conditions to Each Party’s Obligation to Effect the Mergers. The respective obligation of each Party to effect the Mergers is subject to the satisfaction or waiver (except with respect to Section 7.1(a), which shall not be waivable) at or prior to the Closing of each of the following conditions:

 

(a)          Company Stockholder Approvals; Information Statement. The Company Stockholder Approvals shall have been obtained. Solely in the event the Stockholder Consents are obtained and the Information Statement is mailed to Company stockholders in accordance with Section 6.3(f), the Information Statement shall have been mailed to the Company’s stockholders and at least 20 calendar days shall have elapsed from the date of completion of such mailing.

 

(b)      Laws or Orders. No court or other Governmental Authority of competent jurisdiction shall have enacted, announced, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) (collectively, an “Order”) that is then in effect and that restrains, enjoins, renders illegal or otherwise prohibits consummation of the Mergers.

 

7.2.         Conditions to Obligations of Parent and Merger Subs. The obligations of Parent and Merger Subs to effect the Mergers are also subject to the satisfaction or waiver by Parent at or prior to the Closing of the following conditions:

 

(a)        Representations and Warranties. (i) Each of the representations and warranties of the Company set forth in the first sentence of Section 5.1(c)(i) (Capitalization) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (except to the extent that any such representation or warranty expressly speaks as of a particular date or period of time, in which case as of such particular date or period of time), except for any inaccuracies that would result in no more than an increase of $50,000 in the aggregate amount of Merger Consideration; (ii) each of the representations and warranties of the Company set forth in the first sentence of Section 5.1(a) (Organization and Qualification; Subsidiaries), the last sentence of Section 5.1(c)(i) (Capitalization), Section 5.1(d) (Authority Relative to this Agreement), Section 5.1(v) (Brokers and Finders) and Section 5.1(x) (Takeover Statutes), (A) to the extent not qualified or limited by the word “material”, “materiality” or “Material Adverse Effect” as set forth therein, shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all material respects as of such particular date or period of time); and (B) to the extent qualified or limited by the word “material”, “materiality” or “Material Adverse Effect” as set forth therein, shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and correct as of such particular date or period of time); and (iii) the other representations and warranties of the Company set forth in this Agreement shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time), except, in the case of this clause (iii), for any failures of such representations and warranties to be so true and correct (without giving effect to any materiality limitations, such as “material,” “in all material respects” and “Material Adverse Effect” set forth therein) that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(b)         Performance of Obligations of the Company. The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date.

 

(c)          Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a Material Adverse Effect.

 

(d)       Company LLC Units Redemptions. The Company LLC Units Redemptions shall have occurred in accordance with the terms of Section 1.1 and effective as of immediately prior to the LLC Merger Effective Time.

 

(e)          Company Credit Agreement.  Since the date of this Agreement, the lenders under the Company Credit Agreement have not terminated or accelerated the Company Credit Agreement and the amendments set forth in Amendment No. 4 to the Company Credit Agreement shall become effective at or substantially concurrently with Closing (including any amendments made in accordance with Section 6.19 hereof).

 

(f)          Company Units. There shall not be Company Units less than the Floor Unit Count as of the Adjustment Measurement Date.

 

(g)        Payoff Letters. The Company shall have performed its obligations in accordance with Section 6.17, including but not limited to, payment of any Company Owed Payoff Portion.

 

(h)        Company Closing Certificate. Parent and Merger Subs shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(c), Section 7.2(d) and Section 7.2(e) are satisfied.

 

7.3.        Conditions to Obligation of the Company. The obligation of the Company to effect the Mergers are also subject to the satisfaction or waiver by the Company at or prior to the Closing of the following conditions:

 

(a)          Representations and Warranties. The representations and warranties of Parent and Merger Subs set forth in this Agreement shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time), except as would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or have a material adverse effect on the ability of Parent or Merger Subs to consummate the Mergers and deliver the Merger Consideration in accordance with Article IV.

 

(b)        Performance of Obligations of Parent and Merger Subs. Each of Parent and Merger Subs shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date.

 

(c)          Parent Closing Certificate. The Company shall have received at the Closing a certificate signed on behalf of Parent and Merger Subs by an executive officer of Parent certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied.

 

7.4.        Frustration of Closing Conditions. None of Parent, Merger Sub or the Company may rely, either as a basis for not consummating the Mergers or terminating this Agreement and abandoning the Mergers, on the failure of a condition set forth in Article VII to be satisfied if such failure was caused by such Party’s breach or other failure to comply with or perform its obligations under this Agreement.

 

 

8.1.       Termination. This Agreement may be terminated and the Mergers and any other transactions contemplated by this Agreement may be abandoned at any time prior to the Company Merger Effective Time:

 

(a)          by mutual written consent of the Company (provided that such termination has been approved by the Special Committee) and Parent;

 

(b)          by either Parent or the Company (provided that such termination has been approved by the Special Committee), if the Mergers shall not have been consummated on or before June 29, 2025 (the “Outside Date”); provided that, if on the Outside Date, the conditions to Closing set forth in Section 7.1(a) shall not have been satisfied, but all other conditions to the Closing shall have been satisfied (or in the case of conditions that by their terms are to be satisfied at the Closing, shall be capable of being satisfied or waived on such date) or waived, then the Outside Date may be extended by either the Company or Parent by written notice to the other Party for one (1) additional 45 day-period and such date, as so extended, shall be the “Outside Date”; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the Party whose breach of any covenant or agreement set forth in this Agreement has been the proximate cause of the failure of the Mergers to be consummated by such time;

 

(c)         by either Parent or the Company, if the Company Stockholder Approvals shall not have been obtained if a vote shall have been taken thereon at the Company Stockholders Meeting or at any postponement, recess or adjournment thereof taken in accordance with this Agreement;

 

(d)        by either Parent or the Company, if any court or other Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated or entered any Order that permanently restrains, enjoins, renders illegal or otherwise permanently prohibits consummation of the Mergers and such Order shall have become final and non-appealable; provided, that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to the Party whose breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the proximate cause of such Order;

 

(e)        by Parent, if there has been a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement such that any condition set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied (and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty days after the giving of notice thereof by Parent to the Company describing such breach in reasonable detail and stating Parent’s intention to terminate this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (ii) three Business Days prior to the Outside Date); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(e) shall not be available to Parent if it is in breach of any representation, warranty, covenant or agreement set forth in this Agreement, which breach would give rise to a failure of a condition set forth in Section 7.3(a) or Section 7.3(b);

 

(f)          by the Company (provided that such termination has been approved by the Special Committee), if there has been a breach by Parent or Merger Subs of any representation, warranty, covenant or agreement set forth in this Agreement such that any condition set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied (and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty days after the giving of notice thereof by the Company to the breaching Party describing such breach in reasonable detail and stating the Company’s intention to terminate this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (ii) three Business Days prior to the Outside Date); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(f) shall not be available to the Company if it is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement, which breach would give rise to a failure of a condition set forth in Section 7.2(a) or Section 7.2(b);

 

(g)          by Parent, prior to the time the Company Stockholder Approvals are obtained, if a Change of Recommendation shall have been made or occurred;

 

(h)       by the Company (provided that such termination has been approved by the Special Committee), prior to the time the Company Stockholder Approvals are obtained, in connection with entering into an Alternative Acquisition Agreement providing for a Superior Proposal in accordance with Section 6.2(d); provided that prior to or concurrently with such termination, the Company pays or causes to be paid the Company Termination Fee due to Parent;

 

 

(i)          by the Company (provided that such termination has been approved by the Special Committee), by written notice to Parent, if (i) all of the conditions in Section 7.1 and Section 7.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination), (ii) on or after the date the Closing should have occurred pursuant to Section 1.3, the Company has delivered written notice to Parent that (A) all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination), (B) all of the conditions set forth in Section 7.1 and Section 7.3 have been satisfied or waived in writing by the Company (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination) and (C) the Company is ready, willing and able to consummate the Closing, and (iii) Parent and Merger Sub have failed to consummate the Closing on or before the third Business Day after delivery of the notice referenced in clause (ii) of this Section 8.1(i) (or, if earlier, the Business Day immediately prior to the Outside Date), and the Company stood ready, willing and able to consummate the Closing throughout such period;

 

(j)         by Parent, if at any time prior to the Closing, the lenders under the Company Credit Agreement accelerate or otherwise terminate the Company Credit Agreement; or

 

(k)         by Parent or the Company, by written notice to the other Party, if the number of Company Units is less than the Floor Unit Count as of such date in (i) the Adjustment Statement, as finally determined in accordance with Section 4.7 or (ii) two successive Monthly Company Unit Statements delivered pursuant to Section 6.19.

 

8.2.        Effect of Termination and Abandonment.

 

(a)          The Party terminating this Agreement pursuant to Section 8.1 (other than pursuant to Section 8.1(a)) must deliver prompt written notice thereof to the other Parties setting forth in reasonable detail the provision of Section 8.1 pursuant to which this Agreement is being terminated and the facts and circumstances forming the basis for such termination. Except to the extent provided in this Section 8.2, in the event of termination of this Agreement in accordance with Section 8.1, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or of any of its Representatives or Affiliates); provided that the provisions set forth in this Section 8.2 and the second and third sentences of Section 9.1 shall survive the termination of this Agreement. Notwithstanding the previous sentence, but subject to Section 8.2(d) and Section 8.2(e), nothing in this Agreement, including the Closing, will relieve any Party from any liability for any fraud or Willful Breach of this Agreement prior to the termination of this Agreement. In addition to the foregoing, no termination of this Agreement will affect the rights or obligations of any Party pursuant to the Confidentiality Agreement and the Guarantees, which rights, obligations and agreements will survive the termination of this Agreement in accordance with their respective terms.

 

(b)          Subject to Section 8.2(e), in the event that this Agreement is validly terminated:

 

(i)          (A) (1) by the Company or Parent pursuant to Section 8.1(b) (Outside Date), (2) by either the Company or Parent pursuant to Section 8.1(c) (Company Stockholder Approvals Not Obtained) or (3) by Parent pursuant to Section 8.1(e) (Company Breach);

 

 

(ii)          by Parent pursuant to Section 8.1(g) (Change of Recommendation); or

 

(iii)          by the Company pursuant to Section 8.1(h) (Superior Proposal);

 

then, (1) in the case of Section 8.2(b)(i), concurrently with the earlier of the entry into such Alternative Acquisition Agreement and the consummation of such Acquisition Proposal, (2) in the case of Section 8.2(b)(ii), within two Business Days after termination of this Agreement and (3) in the case of Section 8.2(b)(iii), concurrently with, and as a condition to, termination of this Agreement, the Company shall pay or cause to be paid a termination fee of $4,077,500 (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent.

 

(c)          In the event this Agreement is validly terminated:

 

(i)          by the Company pursuant to Section 8.1(f) (Terminable Breach) or Section 8.1(i) (Parent Failure to Close);

 

(ii)          by the Company or Parent pursuant to Section 8.1(b) or Section 8.1(k) at a time when the Company could have terminated this Agreement pursuant to Section 8.1(f) (Terminable Breach) or Section 8.1(i) (Parent Failure to Close), or

 

(iii)          or by Parent pursuant to Section 8.1(k) if prior to such termination Parent materially breached any of its obligations in Section 6.3 or Section 6.8, then within two Business Days after termination of this Agreement, Parent shall pay or cause to be paid a termination fee of $5,825,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in writing by the Company.

 

 

(d)         The Parties agree that the agreements contained in Section 8.2(b) and Section 8.2(c) are integral parts of the transactions contemplated by this Agreement, and that, without these agreements, no Party would have entered into this Agreement. The Parties agree that the Company Termination Fee and the Parent Termination Fee shall not constitute a penalty but are liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. In the event that a party is required to commence litigation as set forth in Section 9.5 to seek all or a portion of the amounts payable to such party under this Section 8.2, and such party prevails in the litigation, it shall be entitled to receive, in addition to all amounts that it is otherwise entitled to receive under this Section 8.2, all expenses (including reasonable attorneys’ fees of outside counsel)) which it has incurred in enforcing its rights hereunder, together with interest on such amount or portion thereof at the prime rate set forth in the Wall Street Journal in effect on the date such payment was required to be made until but excluding the date the payment was actually received or lesser rate that is the maximum permitted by applicable Law; provided that in no event shall costs, expenses and interest set forth herein exceed $1,000,000 in the aggregate.

 

(e)          Limitations on Remedies.

 

(i)          The Parties agree and understand that in no event shall (1) the Company be required to pay the Company Termination Fee on more than one occasion and (2) Parent be required to pay the Parent Termination Fee on more than one occasion.

 

(ii)          If this Agreement is validly terminated pursuant to Section 8.1:

 

 

 

9.1.        Survival. This Article IX and the agreements of the Company, Parent and Merger Subs contained in Article IV, Section 6.9 (Employee Benefits), Section 6.11 (Indemnification; Directors’ and Officers’ Insurance), Section 6.15 (Tax Matters) and any other covenant or agreement contained in this Agreement that by its terms applies in whole or in part after the Company Merger Effective Time shall survive the consummation of the Mergers. This Article IX, the agreements of the Company, Parent and Merger Subs contained in Section 6.10 (Expenses) and Section 8.2 (Effect of Termination and Abandonment), and the Guarantees shall survive the termination of this Agreement. All other representations, warranties, covenants and agreements in this Agreement shall not survive the consummation of the Mergers or the termination of this Agreement.

 

9.2.      Modification or Amendment. Subject to the provisions of applicable Law, at any time prior to the Company Merger Effective Time, this Agreement may be amended, modified or waived if, and only if, such amendment, modification or waiver is in writing and signed, in the case of an amendment or modification by Parent, Merger Subs and the Company, or in the case of a waiver, by the Party against whom the waiver is to be effective; provided that after the receipt of the Company Stockholder Approvals, no amendment shall be made that by applicable Law requires further approval by the holders of shares of Company Stock without obtaining such further approval.

 

9.3.       Waiver. Other than Section 7.1, the conditions to each of the respective Parties’ obligations to consummate the Mergers and any other transactions contemplated by this Agreement are for the sole benefit of such Party and may be waived by such Party in whole or in part to the extent permitted by applicable Law. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law (except to the extent specifically provided otherwise in Section 8.2).

 

9.4.        Counterparts. This Agreement and any amendments to this Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute 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. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission or by email of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement.

 

9.5.        Governing Law and Venue; Waiver of Jury Trial.  This Agreement and any claim, cause of action or Action (whether at law, in contract or in tort) that may directly or indirectly be based upon, relate to or arise out of this Agreement or any transaction contemplated hereby, or the negotiation, execution or performance hereunder shall be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (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. In addition, each of the Parties (i) irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, if jurisdiction is not then available in the United States District Court for the District of Delaware, then any Delaware state court) (the “Chosen Courts”), in the event of any claim, action or proceeding between the Parties (whether in contract, tort or otherwise) arises out of or relating to this Agreement or the transactions contemplated hereby, (ii) expressly waives any claim of lack of personal jurisdiction or improper venue and any claims that such courts are an inconvenient forum with respect to such a claim and (iii) agrees that it shall not bring any claim, action or proceeding against any other Parties arising out of or relating to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts and that a final judgment in any legal proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law, and (iv) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Chosen Courts. Each Party hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to its address set forth in Section 9.7, such service to become effective ten days after such mailing. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (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, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5, (1) UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (2) MAKES THIS WAIVER VOLUNTARILY.

 

9.6.          Specific Performance.

 

(a)          Each of Parent, Merger Subs, the Company and Company LLC agree that imminent, irreparable harm would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms on a timely basis or were otherwise breached and that money damages and other legal remedies, even if available, would be an inadequate remedy for such harm. It is accordingly agreed that Parent, Merger Subs, the Company and Company LLC shall be entitled to injunctive or other equitable relief to prevent or remedy breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court identified in Section 9.5, this being in addition to any other remedy to which they are entitled at law or in equity. Each of Parent, Merger Subs, the Company and Company LLC agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other Party has an adequate remedy at law or the balance of equities disfavors equitable relief. Any Party seeking an injunction, specific performance or other equitable remedies to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court having jurisdiction related to this Agreement as provided in Section 9.5, may seek such an injunction without the necessity of demonstrating damages (or the inadequacy of damages and other legal remedies) or posting a bond or other security in connection with any such injunction or other equitable relief. Each of Parent and Merger Subs, on the one hand, and the Company and Company LLC, on the other hand, hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent, restrain or remedy breaches or threatened breaches of this Agreement by Parent, Merger Subs, the Company or Company LLC, as applicable, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of Parent, Merger Subs, the Company and Company LLC, as applicable, under this Agreement. If a court of competent jurisdiction has declined to specifically enforce the obligations of Parent and Merger Subs to consummate the Mergers pursuant to a claim for specific performance brought against Parent and Merger Subs, and has instead granted an award of damages for such breach, the Company may enforce such award and accept damages for such breach on behalf of its stockholders.

 

(b)        Notwithstanding anything herein to the contrary, it is acknowledged and agreed that, prior to a termination of this Agreement, the Company and Company LLC shall be entitled to seek and obtain specific performance of Parent’s and Merger Subs’ obligation to cause Parent to exercise its rights to enforce the obligations of the Equity Sources under the Equity Commitment Letters to cause the Equity Financing to be funded in accordance with and subject to the terms and conditions set forth in the Equity Commitment Letter and to consummate the Mergers if and only if, and only for so long as (and in no other circumstances): (i) all of the conditions set forth in Section 7.1 and Section 7.2 shall have been satisfied (other than those conditions that by their nature are to be satisfied by actions to be taken at the Closing or determinations to be made immediately prior to the Company Merger Effective Time, so long as each of such conditions would have been satisfied on the date the Closing should have occurred pursuant to Section 1.3) on the date the Closing should have occurred pursuant to Section 1.3, (ii) since such date, no event shall have occurred nor shall any condition exist that would cause any of the conditions set forth in Section 7.1 and Section 7.2 to fail to be satisfied on any day after such date, (iii) Parent and Merger Subs are obligated to complete the Closing in accordance with Section 1.3 and either of them have failed to do so, and (iv) the Company has irrevocably confirmed in a written notice delivered to Parent that, if specific performance is granted, the Equity Financing is funded and Parent and Merger Subs otherwise comply with their obligations hereunder, then the Closing will occur in accordance with Section 1.3. In the event this Agreement is terminated and the Parent Termination Fee is payable in accordance with Section 8.2(c), subject to Section 8.2(e)(ii), the Parent Termination Fee shall be the sole remedy to the Company Related Parties hereunder and specific performance of the covenants and agreement hereunder shall not be available other than to enforce the payment of the Parent Termination Fee.

 

(c)          Notwithstanding anything to the contrary in this Agreement, if prior to the Outside Date any Party initiates a legal proceeding to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically the terms of this Agreement, then the Outside Date will be automatically extended by (i) the amount of time during which such legal proceeding is pending plus 20 Business Days; or (ii) such other time period established by the court presiding over such legal proceeding.

 

9.7.       Notices. All notices, requests, instructions or other communications or documents to be given or made hereunder by any Party to the other Parties to this Agreement shall be in writing and (a) served by personal delivery by hand upon the Party for whom it is intended, (b) served by an internationally-recognized overnight courier service upon the Party for whom it is intended, (c) delivered by registered or certified mail, return receipt requested or (d) sent by email:

 

If to Parent or Merger Subs:

 

Casago Holdings, LLC
15475 N Greenway Hayden Loop, Suite B2
Scottsdale, AZ 85260-1616
Attention: Joseph Riley
Email: joseph@patriotfamilyhomes.com

 

with a copy to (which shall not constitute notice):

 

Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Attention: Christopher M. Barlow
Email: christopher.barlow@skadden.com

 

If to the Special Committee:

 

Vacasa, Inc.
850 NW 13^th Ave
Portland, OR 97209
Attention: Rebecca Boyden
Email: Rebecca.boyden@vacasa.com

 

with a copy to (which shall not constitute notice):

 

Vinson & Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Attention: Lande A. Spottswood
Email: lspottswood@velaw.com

 

and

 

Vinson & Elkins L.L.P.
Trammel Crow Center
2100 Ross Avenue, Suite 3900
Dallas, TX 75201
Attention: D. Alex Robertson
Email: arobertson@velaw.com

 

If to the Company:

 

Vacasa, Inc.
850 NW 13^th Ave
Portland, OR 97209
Attention: Rebecca Boyden
Email: Rebecca.boyden@vacasa.com

 

with a copy to (which shall not constitute notice):

 

Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Justin Hamill; Michael Anastasio
Email: justin.hamill@lw.com; michael.anastasio@lw.com

 

with a copy to (which shall not constitute notice):

 

Vinson & Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Attention: Lande A. Spottswood
Email: lspottswood@velaw.com

 

and

 

Vinson & Elkins L.L.P.
Trammel Crow Center
2100 Ross Avenue, Suite 3900
Dallas, TX 75201
Attention: D. Alex Robertson
Email: arobertson@velaw.com

 

or to such other Person or addressees as has or have been designated in writing by the Party to receive such notice provided above. Any notice, request, instruction or other communications or document given as provided above shall be deemed given to the receiving Party (w) upon actual receipt, if delivered personally, (x) on the next Business Day after deposit with an overnight courier, if sent by an overnight courier, (y) three Business Days after deposit in the mail, if sent by registered or certified mail or (z) upon confirmation of receipt by the recipient if sent by email. Copies to outside counsel are for convenience only and failure to provide a copy to outside counsel does not alter the effectiveness of any notice, request, instruction or other communication otherwise given in accordance with this Section 9.7. Rejection or other refusal to accept, or the inability to deliver because of changed address or other details of which no notice is given, will be deemed to be receipt of any notice pursuant to this Section 9.7 as of the date of rejection, refusal or inability to deliver.

 

9.8.      Entire Agreement. This Agreement (including any exhibits, annexes and schedules hereto), the Confidentiality Agreement, the Support Agreements and the documents and other agreements among the Parties, or any of them, as contemplated by or referred to herein, including the Company Disclosure Schedule, the Parent Disclosure Schedule, the Equity Commitment Letters and the Guarantees, together with each other agreement entered into by or among any of the Parties as of the date of this Agreement that makes reference to this Section 9.8, constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the Parties with respect to the subject matter hereof.

 

9.9.      No Third-Party Beneficiaries. Except as provided in this Section 9.9, Parent and the Company hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other Parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the Parties any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein; provided that if, and only if, the Company Merger Effective Time occurs, (a) the holders of shares of Company Stock and Company Equity Awards shall be third-party beneficiaries of, and entitled to rely on, Section 4.2 (Effect of the Company Merger; Conversion of Securities), Section 4.4 (Exchange of Shares), Section 4.5 (Treatment of Company Equity Awards), Section 4.7 (Adjustments to Merger Consideration) and Section 9.19 (Shareholder Representative), (b) the Indemnified Parties shall be third-party beneficiaries of, and entitled to rely on, Section 6.11 (Indemnification; Directors’ and Officers’ Insurance) and (c) the Shareholder Representative shall be a third-party beneficiary of, and entitled to rely on, Section 9.19 (Shareholder Representative). The Parties further agree that the rights of third-party beneficiaries under the first proviso of this Section 9.9 shall not arise unless and until the Company Merger Effective Time occurs.

 

9.10.      Special Committee Approval. Notwithstanding anything to the contrary set forth in this Agreement, until the Company Merger Effective Time, (a) the Company may take the following actions only with the prior approval of, and shall take any such action if directed to do so by, the Special Committee: (i) amending, restating, modifying or otherwise changing any provision of this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees; (ii) waiving any right under this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees or extending the time for the performance of any obligation of Parent or Merger Subs hereunder or any other party under the Equity Commitment Letters, the Support Agreements or the Guarantees; (iii) terminating this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees; (iv) taking any action under this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees that expressly requires the approval of the Special Committee; (v) making any decision or determination, or taking any action under or with respect to this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees that would reasonably be expected to be, or is required to be, approved, authorized, ratified or adopted by the Company Board and (vi) agreeing to do any of the foregoing and (vii) no decision or determination shall be made, or action taken, by the Company Board under or with respect to this Agreement, the Equity Commitment Letters, the Support Agreements or the Guarantees without first obtaining the approval of the Special Committee. In the event the Special Committee ceases to exist or is disbanded, any consents, determinations, actions or other rights or obligations afforded to the Special Committee shall be afforded to a majority of the remaining independent and disinterested members of the Company Board.

 

9.11.      Obligations of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action, such requirement shall be deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action. Whenever this Agreement requires a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Company Merger Effective Time, on the part of the Surviving Corporation to cause such Subsidiary to take such action.

 

9.12.      Transfer Taxes. Any transfer, documentary, sales, use, stamp, registration, excise and other similar Taxes and fees incurred in connection with the Mergers and the other transactions contemplated by this Agreement (“Transfer Taxes”) shall be paid by the party on which such Transfer Taxes are levied. The person or persons responsible under applicable Law for the filing of any Tax Returns and other documentation with respect to any such Transfer Taxes (or if multiple parties, Parent) shall file all such necessary Tax Returns and other documentation. The Parties will cooperate, in good faith, in the filing of any Tax Returns with respect to Transfer Taxes and the minimization, to the extent reasonably permissible under applicable Law, of the amount of any Transfer Taxes.

 

9.13.       Definitions. Capitalized terms used in this Agreement have the meanings specified in Annex A.

 

9.14.      Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.

 

9.15.      Interpretation; Construction.

 

(a)          The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated.

 

(b)          If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa, and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The words “includes” or “including” shall mean “including without limitation,” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if,” any reference to a Law shall include any rules and regulations promulgated thereunder, and any reference to any Law in this Agreement shall mean such Law as from time to time amended, modified or supplemented and to any rules or regulations promulgated thereunder. Currency amounts referenced herein are in U.S. Dollars. Each reference to a “wholly-owned Subsidiary” or “wholly-owned Subsidiaries” of a Person shall be deemed to include any Subsidiary of such Person where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other than directors qualifying shares, nominee shares or other equity interests that are required by Law or regulation to be held by a director or nominee). The terms “provided to” or “made available to,” with respect to documents required to be provided by the Company to Parent or Merger Subs, include documents provided directly to Parent’s legal counsel, filed or furnished by the Company with the SEC or in the virtual data room titled “Project Vista” located at Intralinks (the “Virtual Data Room”) at least 24 hours prior to the date hereof.

 

(c)          The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

 

9.16.       Successors and Assigns. No Party may assign either this Agreement or any of its rights, interests or obligations under this Agreement without the prior written approval of the other Parties, except that Parent and Merger Subs will have the right to assign all or any portion of their respective rights and obligations pursuant to this Agreement from and after the Company Merger Effective Time (a) in connection with a merger or consolidation involving Parent or Merger Sub or other disposition of all or substantially all of the assets of Parent, Merger Sub or the Surviving Corporation, (b) to any of their respective Affiliates, or (c) to any source of Equity Financing pursuant to the terms of the Equity Financing, for purposes of creating a security interest herein or otherwise assigning as collateral in respect of the Equity Financing. It is understood and agreed that, in each case, such assignment not (i) affect the obligations of the parties to the Equity Commitment Letters or to the Guarantees, or (ii) materially impede or materially delay the consummation of the Mergers or otherwise materially impede the rights of the holders of shares of Company Stock, Company Equity Awards and Company LLC Units pursuant to this Agreement. Subject to the preceding sentence, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns. No assignment by any Party will relieve such Party of any of its obligations under this Agreement. Any purported assignment in violation of this Agreement is void.

 

9.17.       No Recourse. In no event will the Company, whether prior to or after termination of this Agreement, seek or obtain, nor will it permit any of its Representatives to seek or obtain, nor will any other Person be entitled to seek or obtain, any monetary recovery or monetary award of any kind (including consequential, special, indirect or punitive damages) against any Parent Related Party with respect to this Agreement, the Equity Commitment Letters or the Guarantees or the transactions contemplated hereby and thereby (including any breach by any of the Guarantors, Parent or Merger Subs), the termination of this Agreement, the failure to consummate the transactions contemplated hereby or any claims or actions under applicable Laws arising out of any such breach, termination or failure, except, in each case, for claims that the Company may assert (a) against any Person that is a party to, and solely pursuant to the terms and conditions of, the Confidentiality Agreement or the Support Agreements; (b) against Parent or Merger Subs to the extent expressly provided for in this Agreement, the Guarantees or the Equity Commitment Letters or (c) against the Guarantors to the extent expressly provided for in this Agreement, the Guarantees or the Equity Commitment Letters.

 

9.18.     Necessary Further Actions. If, at any time after the Company Merger Effective Time, any further action is determined by Parent or the Surviving Corporation to be necessary or desirable to carry out the purposes of this Agreement or to vest in the Surviving Corporation the full right, title and possession of and to all rights and property of Merger Subs and the Company, the officers and directors of the Surviving Corporation shall be fully authorized (in the name of Merger Subs, in the name of the Company and otherwise) to take such action.

 

9.19.       Shareholder Representative.

 

(a)        Each of the Parties agrees that the Shareholder Representative may enforce, on behalf of the Company, the Company’s rights under Section 4.7.  The Shareholder Representative is also entitled to initiate or otherwise file any Action in the courts contemplated by Section 9.5 with respect thereto on behalf of the Company.  Each of the Parties acknowledges and agrees that the Shareholder Representative shall be entitled to receive at the same time as received by the Company any notices required to be delivered to the Company with respect to Section 4.7, including, but not limited to, the Adjustment Dispute Notice.

 

(b)         To the maximum extent permitted by applicable Law, the Company irrevocably appoints and grants the Shareholder Representative, in its capacity as a Shareholder Representative, with full power, as the Company’s true and lawful representative, agent and attorney-in-fact, in the Company’s name, place and stead, with full power of substitution, to, from and after the Closing, (i) negotiate any disputes with the Parent with respect to the Disputed Merger Consideration, including on behalf of holders of Company Stock and Company Equity Awards, (ii) bring any claim or Action on behalf of the Company against the Parent with respect to Section 4.7, (iii) defend any claim or action by Parent, on behalf of the Company with respect to the Disputed Merger Consideration or otherwise exercise or enforce any of the Company’s rights under Section 4.7 against the Seller, including on behalf of holders of Company Stock and Company Equity Awards, (iv) execute and deliver all instruments, deeds, agreements, documents and certificates necessary, advisable or appropriate in the discretion of the Shareholder Representative, as the case may be, to effectuate any of the foregoing, and (v) direct the Escrow Agent to pay all or a portion of the Disputed Merger Consideration in accordance with Section 4.7(h)(iii).  The agency and powers of attorney granted herein shall be deemed to be coupled with an interest, shall be irrevocable except that such grant shall automatically terminate with respect to a Person when it is no longer serving as a Shareholder Representative.

 

(c)          Any decision, act, consent, approval or instruction of the Shareholder Representative (then serving at such time) properly given or made pursuant to this Section 9.19 shall constitute a decision, act, consent, approval or instruction of the Company and shall be final, binding and conclusive upon Parent, and the other Parties hereto shall be entitled to conclusively rely upon any representation of the Shareholder Representative with respect to any act, decision, consent, approval or instruction of the Shareholder Representative.  Neither the Shareholder  Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers or advisors will have any liability to Parent, Merger Subs, or the Company, or any of their respective Affiliates, or any Person acting on behalf of the foregoing, with respect to actions taken, or omitted to be taken, by the Shareholder Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers or advisors in connection therewith), except that a Shareholder Representative will be liable for its fraud as finally determined by a court of competent jurisdiction. The Shareholder shall be entitled to full reimbursement from Parent for all reasonable and documented expenses, disbursements and advances (including fees and disbursements of its external advisors) incurred by or on behalf of the Shareholder Representative in such capacity.

 

(d)          In the event that the Shareholder Representative resigns, such Shareholder Representative shall be deemed automatically removed and the Company, on the recommendation of the Special Committee, shall promptly appoint a Person to replace such Shareholder Representative.

 

[Signature Page Follows]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the Parties as of the date first written above.

 

	VACASA, INC.
	By:	/s/ Robert Greyber

		Name:	Robert Greyber
		Title:	Chief Executive Officer

	VACASA HOLDINGS LLC
	By:	/s/ Robert Greyber

		Name:	Robert Greyber
		Title:	Chief Executive Officer

Annex A
DEFINED TERMS

 

“Acceptable Confidentiality Agreement” means an agreement with the Company that is either (a) in effect as of the date hereof; or (b) executed, delivered and effective after the date hereof, in either case, (i) containing provisions that require any counterparty thereto (and any of its Affiliates and Representatives named therein) that receive non-public information of or with respect to the Company to keep such information confidential (subject to customary exceptions), (ii) containing provisions that are not less restrictive in any material respect on the Company’s counterparty (and its Affiliates and Representatives) than those contained in the Confidentiality Agreement and (iii) that does not (A) prohibit the Company from providing any information to Parent in accordance with, or otherwise complying with Section 6.2 or (B) provide for the reimbursement by the Company or any of its Subsidiaries of any of the counterparty’s costs or expenses.

 

“Acquisition Proposal” means any proposal or offer from a Third Person relating to any transaction or series of related transactions that, if consummated, would result in (a) a direct or indirect purchase or acquisition by a Third Person of the assets of the Company constituting fifteen percent (15%) or more of the consolidated net revenues, net income or total assets (including equity securities of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole; (b) any direct or indirect purchase or acquisition by a Third Person of beneficial ownership of fifteen percent (15%) or more of the total voting power of the Company; or (c) a direct or indirect merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or other similar transaction involving the Company pursuant to which such Third Person (or its equityholders) would hold securities representing fifteen percent (15%) or more of the total voting power of the Company (or the surviving or resulting entity) after giving effect to such transaction.

 

“Affiliate” means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with a second Person, provided the Guarantors and their respective controlled Affiliates shall be deemed Affiliates of Parent and Merger Subs. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010, (c) anti-bribery legislation promulgated by the European Union and implemented by its member states, (d) legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and (e) similar legislation applicable to the Company or any Company Subsidiary from time to time.

 

“Anticipated Closing Date” means, as of any time, unless any of the conditions set forth in Section 7.1, Section 7.2 and Section 7.3 other than the condition set forth in Section 7.1(a) have not been satisfied or waived in writing (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions are capable of being satisfied), the second Business Day following the Company Stockholders Meeting and (b) otherwise, any date reasonably agreed by Parent and the Company as the date Closing is anticipated to occur.

 

“Antitrust Law” means the Sherman Antitrust Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the Federal Trade Commission Act of 1914, as amended, and all other federal, state, foreign or supranational statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws, including any antitrust, competition, trade or foreign investment Laws and regulations that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, or (ii) regulate foreign investments.

 

“Business Day” means any day other than a Saturday or Sunday or a day on which banks in New York, New York are required or authorized by Law to close.

 

“Business Systems” means all Software, computer hardware (whether general or special purpose), electronic data processors, databases, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, including any outsourced systems and processes, and any Software and systems provided via the cloud or “as a service”, that are owned or used in the conduct of the business of the Company or any Company Subsidiaries.

 

“Class A Common Stock” means the shares of Class A common stock, par value $0.00001 per share, of the Company.

 

“Class A Rollover Shares” means the shares of Class A Common Stock that the Rollover Stockholders will contribute to Parent in the Rollover pursuant to the Support Agreements.

 

“Class B Common Stock” means the shares of Class B common stock, par value $0.00001 per share, of the Company.

 

“Class G Common Stock” means the shares of Class G common stock, par value $0.00001 per share, of the Company.

 

“Class G Units” shall have the meaning set forth in the Company LLC Agreement.

 

“Common Units” shall have the meaning set forth in the Company LLC Agreement.

 

“Company Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Company, dated as of December 6, 2021, as amended.

 

“Company Credit Agreement” means the Revolving Credit Agreement, dated as of October 7, 2021, by and among Vacasa Holdings LLC, V-Revolver Sub LLC, the Lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, Collateral Agent and an Issuing Bank, as amended, supplemented, refinanced or otherwise modified through consents, waivers or otherwise from time to time.

 

“Company Equity Plan” means, as applicable, (a) the Company 2021 Incentive Award Plan, (b) the TurnKey Vacation Rentals, Inc. 2014 Equity Incentive Plan and (c) the Company 2016 Equity Compensation Incentive Plan, each as amended.

 

“Company ESPP” means the Company 2021 Nonqualified Employee Stock Purchase Plan.

 

“Company-Licensed IP” means all Intellectual Property rights owned by a third party and licensed to the Company or any Company Subsidiary or to which the Company or any Company Subsidiary otherwise has a right to use.

 

“Company LLC Agreement” means the Fourth Amended and Restated Limited Liability Company Agreement of Company LLC, dated as of December 6, 2021, as amended.

 

“Company LLC Units” means Common Units and Class G Units of Company LLC.

 

“Company Option” means an option to purchase shares of Class A Common Stock.

 

“Company Organizational Documents” means the Company Certificate of Incorporation, bylaws and any other organizational documents of the Company, as amended, modified or supplemented from time to time.

 

“Company-Owned IP” means all Intellectual Property rights owned or purported to be owned by the Company or any of the Company Subsidiaries.

 

“Company PSU” means a performance stock unit denominated in Class A Common Stock issued pursuant to the Company Equity Plan. Any Company PSU for which the applicable performance condition has been satisfied but which remains subject to vesting based on continued service as of immediately prior to the Company Merger Effective Time shall be deemed to be a Company RSU for purposes of Section 4.5.

 

“Company Related Party” means any Related Party of the Company.

 

“Company RSU” means a restricted stock unit denominated in Class A Common Stock that is subject to time-based vesting issued pursuant to the Company Equity Plan.

 

“Company SAR” means a stock appreciation right with respect to Class A Common Stock issued pursuant to the Company Equity Plan.

 

“Company Stock” means the Class A Common Stock, the Class B Common Stock, the Class G Common Stock.

 

“Company Stockholder Approvals” means (a) the adoption of this Agreement by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class A Common Stock and Class B Common Stock, voting together as a single class, and entitled to vote thereon, (b) the adoption of this Agreement and the waiver of any applicable provision of Section 5.1(d) of the Company Certificate of Incorporation by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class A Common Stock, voting as a single class, and (c) the adoption of this Agreement and the waiver of any applicable provision of Section 5.1(d) of the Company Certificate of Incorporation by the affirmative vote of the holders of a majority in voting power of the outstanding shares of Class B Common Stock, voting as a single class.

 

“Company Subsidiary” means each Subsidiary of the Company.

 

“Company Units” means, as of the date of determination, the number of homes that are appropriately and accurately recorded as under management by the Company or any of its Subsidiaries on the Company’s internal portal system, as determined by the Company in a manner in the ordinary course of business and consistent with the calculations performed by the Company for purposes of disclosure in the Company’s Annual Report on Form 10-K filed with the SEC (provided, that during the Pre-Closing Period, the Company shall not materially change the methods, policies, or practices related to such calculations without the prior written consent of Parent, including with respect to “adds” and “saves” as described in the Company’s written policies governing such calculations as of the date of this Agreement, other than any changes permitted under Section 6.1(b)(viii)); provided, however, that a home shall not be included as a Company Unit if the agreement governing the relationship between Company LLC and the owner of the unit is (a) first entered into after the date of this Agreement in material violation of Section 6.1 or (b) amended or modified after the date of this Agreement in material violation of Section 6.1.

 

“Confidential Information” means any information, knowledge or data concerning the businesses or affairs of (a) the Company or the Company Subsidiaries that is not already generally available to the public, or (b) any Suppliers or customers of the Company or any Company Subsidiary that is subject to or bound by any confidentiality agreements or other confidentiality restriction or obligation.

 

“Contract” means any legally binding written contract, subcontract, indenture, note, bond, lease, license, commitment, arrangement or other agreement, other than an Employee Benefit Plan.

 

“Convertible Notes” means notes pursuant to the Note Purchase Agreement dated as of August 7, 2024 among the Company, Company Holdings, Acquiom Agency Services LLC and the other parties thereto, as amended, supplemented, refinanced or otherwise modified through consents, waivers or otherwise from time to time.

 

“Default” shall have the meaning given to such term in the Company Credit Agreement.

 

“Employee Benefit Plan” means each (a) “employee benefit plan” as defined in Section 3(3) of ERISA (including employee benefit plans which are not subject to the provisions of ERISA) and (b) nonqualified deferred compensation plan, bonus, stock option, stock purchase, restricted stock, other equity or equity-based compensation arrangement, phantom equity, performance award, incentive, deferred compensation, retiree medical or life insurance, death or disability benefit, supplemental retirement, severance, redundancy, retention, change in control, employment, consulting, fringe benefit, personnel, collective bargaining, sick pay and vacation plans or arrangements or other employee benefit plan, program, policy, agreement, program, practice, understanding or arrangement which is not described in the clause (a) of this definition, whether written or unwritten.

 

“Employer Entities” means, collectively, the Company, Company LLC and their respective Subsidiaries and Affiliates (and includes, following the Closing, Parent and its Subsidiaries and Affiliates).

 

“Environmental Laws” means any United States federal, state or local or non-United States Laws relating to: (a) releases or threatened releases of, or exposure of any person to, Hazardous Substances or materials containing Hazardous Substances; (b) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances or materials containing Hazardous Substances; or (c) pollution or protection of the environment, natural resources or human health and safety.

 

“Equity Interests” means (a) in the case of a corporation, any and all shares (however designated) of capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership or limited liability company, any and all partnership or membership interests (whether general or limited) or units (whether common or preferred), (d) in any case, any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person, and (e) in any case, any right to acquire any of the foregoing.

 

“Equity Sources” means TRT Investors 37, LLC, MHRE STR II, LLC and Roofstock, Inc.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

“ERISA Affiliate” means each Person that, at any relevant time, could be treated together with the Company or any of its Subsidiaries, including any of the Employer Entities, as a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414(b), (c), (m) or (o) of the Code.

 

“Escrow Account” means the escrow account established pursuant to the terms and conditions set forth in the Escrow Agreement.

 

“Escrow Agent” means the escrow services group of a nationally recognized financial institution reasonably acceptable to the Company and Parent.

 

“Escrow Agreement” means an escrow agreement, to be entered into by and among Parent, the Company, the Shareholder Representative and the Escrow Agent, if applicable, which agreement shall be based on the Escrow Agent’s form and shall include customary terms reasonably acceptable to the Company and Parent.

 

“Event of Default” shall have the meaning given to such term in the Company Credit Agreement.

 

“Exchange” means with respect to any Person, any U.S. or non-U.S. securities, commodities, futures, options, derivatives or other financial product exchange, transaction facility or other financial market or system (and its clearinghouse, if any) through which such Person or any of its Affiliates conducts trading.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Floor Unit Count” means 24,000.

 

“Group” shall have the meaning given to such term under Section 13(d) of the Exchange Act.

 

“Guarantors” means TRT Investors 37, LLC, MHRE STR II, LLC and Roofstock, Inc.

 

“Hazardous Substance(s)” means (a) those substances defined in or regulated under the following United States federal statutes and their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide, and Rodenticide Act and the Clean Air Act, (b) petroleum and petroleum products, including crude oil and any fractions thereof, (c) natural gas, synthetic gas, and any mixtures thereof, (d) polychlorinated biphenyls, per- and polyfluoroalkyl substances, asbestos, legionella bacteria and radon, and (e) any substance, material or waste regulated by any Governmental Authority pursuant to any Environmental Law.

 

“Indebtedness” means, with respect to any Person, without duplication, as of the date of determination, means all indebtedness, liabilities and obligations, now existing or hereafter arising, for money borrowed by a Person, or any contingent liability for or guaranty by a Person of any obligation of any other Person (including the pledge of any collateral or grant of any security interest by a Person in any property as security for any such liability, guaranty or obligation) whether or not any of the foregoing is evidenced by any note, indenture, debenture, bond, guaranty, agreement or instrument.

 

“Intellectual Property” means any and all intellectual property rights, including (a) patents, patent applications and patent disclosures, together with all reissues, continuations, continuations-in-part, divisionals, revisions, extensions or reexaminations thereof, and invention disclosures relating thereto, (b) trademarks and service marks, trade dress, logos, trade names, corporate names, brands, slogans, and other source identifiers together with all translations, adaptations, derivations, combinations and other variants of the foregoing, and all applications, registrations, and renewals in connection therewith, together with all of the goodwill associated with the foregoing, (c) copyrights, and other works of authorship (whether or not copyrightable), and registrations and applications for registration, renewals and extensions thereof, (d) trade secrets, know-how (including ideas, formulas, compositions, and database rights), (e) Internet domain names and social media accounts, (f) copies and tangible embodiments of any of the foregoing, in whatever form or medium, and (g) registrations and applications for any of the foregoing rights.

 

“Knowledge” means, when used with respect to the Company, the actual knowledge of any of the Persons listed on Section A.1 of the Company Disclosure Schedule and, with respect to Parent, the actual knowledge of any of the Persons listed on Section A.1 of the Parent Disclosure Schedule, in each case, after reasonable inquiry of such Person’s direct reports who would reasonably be expected to have actual knowledge of the matter in question.

 

“Law” means any federal, national, state, county, municipal, provincial, local, foreign or multinational, statute, constitution, common law, ordinance, code, decree, order, judgment, rule, regulation, stock exchange requirements, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

 

“Leased Real Property” means the real property leased, subleased or licensed by the Company or Company Subsidiaries as tenant, subtenant or licensee (as applicable), together with, to the extent leased, subleased or licensed by the Company or Company Subsidiaries, all buildings and other structures, facilities or improvements located thereon and all easements, licenses, rights and appurtenances of the Company or Company Subsidiaries relating to the foregoing.

 

“Legacy Unitholders” means any holders of Company LLC Units (other than the Company and its wholly owned Subsidiaries) immediately prior to the Rollover of the Rollover Units.

 

“Lien” means any mortgage, lien, license, pledge, hypothecation, charge, security interest, deed of trust, U.S. Uniform Commercial Code lien, right of first refusal or offer or similar third‑party right, easement, lease, sublease or similar encumbrance in respect of any property or asset, including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset or any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset.

 

“Liquidity” shall have the meaning set forth in the Company Credit Agreement.

 

“Majority TRA Holders” means the Persons defined as the “Holders” in the TRA Amendment.

 

“Material Adverse Effect” means any change, effect, event, occurrence, circumstance, fact or development that, individually or in the aggregate, (i) has had or would reasonably be expected to have a material adverse on the business, operations, assets, properties, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole; provided, however, that no change, effect, event, occurrence, circumstance, fact or development resulting from, relating to or arising from the following shall constitute a Material Adverse Effect or be taken into account in determining whether a Material Adverse Effect has occurred, is occurring or would be occurring: (a) changes in the economy or financial, debt, credit or securities markets generally in the United States or any other country or region in the world, or changes in conditions in the global economy generally; (b) changes generally affecting the industries in which the Company and its Subsidiaries operate; (c) changes in United States generally accepted accounting principles (“U.S. GAAP”) or in any Law, or the official interpretations thereof; (d) changes in any political or geopolitical, regulatory, legislative or social conditions, acts of war (whether or not declared), hostilities, military actions or acts of terrorism, or any escalation or worsening of the foregoing; (e) weather conditions or acts of God (including storms, earthquakes, tsunamis, tornados, hurricanes, pandemics (including COVID-19), epidemics or other outbreaks of disease, quarantine restrictions, floods, droughts or other natural disasters and force majeure events) (or escalation or worsening of any such events or occurrences, including, as applicable, subsequent wave(s)); (f) any capital market conditions, in each case in the United States or any other country or region in the world; (g) a decline, in and of itself, in the price or trading volume of the shares of Class A Common Stock on Nasdaq or any other securities market or in the trading price of any other securities of the Company or any of its Subsidiaries; provided that the underlying causes of any such decline may be taken into account unless (and to the extent) such underlying cause would otherwise be excluded by other clauses of this definition; (h) any failure, in and of itself, by the Company to meet any internal or published projections, forecasts, estimates or predictions of revenues, earnings, cash flow or cash position or other financial or operating measures or metrics (whether such projections, forecasts, estimates or predictions were made by the Company or independent third parties) for any period; provided that the underlying causes of any such failure may be taken into account unless (and to the extent) such underlying cause would otherwise be excluded by other clauses of this definition; (i) (x) the identity of Parent or Merger Subs, or (y) the execution and delivery or performance of this Agreement, or (z) announcement, pendency or consummation of this Agreement or the transactions contemplated hereby, including the Mergers, including, in each case the impact thereof on relationships with lenders, employees, customers, suppliers, distributors, partners, vendors or other Persons; (j) any action or claim made or brought by any of the current or former stockholders of the Company or Members of Company LLC (or on their behalf or on behalf of the Company or Company LLC) against the Company, Company LLC or any of their respective directors, officers or employees arising out of this Agreement or the transactions contemplated hereby, including the Mergers; (k) any action or inaction by the Company or its Subsidiaries taken or omitted to be taken (x) by the Special Committee or the Company or any of its Subsidiaries expressly required by this Agreement or (y) at the written request of Parent or Merger Subs or with the written consent of Parent or Merger Subs or expressly required by this Agreement; (l) the availability or cost of equity, debt or other financing to Parent or Merger Subs; or (m) any reduction in Company Unit Count or Liquidity, to the extent it would result in an adjustment to the Merger Consideration if Closing were to occur in accordance with this Agreement; except, in the case of clause (a) through clause (f), to the extent the Company and its Subsidiaries, taken as a whole, are disproportionately adversely affected by such changes, effects, events, occurrences or developments, compared to other, similarly situated companies in the industry in which the Company and its Subsidiaries operate, and then solely to the extent of any such disproportionality or (ii) would prevent or materially delay, interfere or hinder the consummation by the Company of the Mergers or the compliance by the Company with its obligations under this Agreement.

 

“Material Company Customers” means the ten (10) largest vacation rental owners of the Company during the twelve (12)-month period ended December 31, 2023, measured by dollar value of rental volume.

 

“Material Company Suppliers” means the ten (10) largest suppliers of the Company (which shall not include professional service providers) during the twelve (12)-month period ended December 31, 2023, measured by dollar value of payments made to such suppliers.

 

“Material Leased Real Property” means the real property leased, subleased or licensed by the Company or Company Subsidiaries as tenant, subtenant or licensee (as applicable) that (i) are material to the business of the Company or the Company Subsidiaries or (ii) have rent obligations per property equal to or exceeding $1,000,000 per twelve (12)-month period, in each case, together with, to the extent leased, subleased or licensed by the Company or Company Subsidiaries, all buildings and other structures, facilities or improvements located thereon and all easements, licenses, rights and appurtenances of the Company or Company Subsidiaries relating to the foregoing.

 

“Open Source Software” means any Software in source code form that is licensed pursuant to (a) any license that is a license now or in the future approved by the open source initiative and listed at http://www.opensource.org/licenses, which licenses include all versions of the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL), (b) any license to Software that is considered “free” or “open source software” by the open source foundation or the free software foundation, or (c) any Reciprocal License.

 

“Parent Related Party” means any Related Party of Parent.

 

“Payment Processing Agreement” means the U.S. Select Merchant Processing Agreement, dated as of March 10, 2021, by and among JPMorgan Chase Bank, N.A., Paymentech, LLC, also known as Chase Merchant Services, and Vacasa, LLC, as Merchant, as amended.

 

“PCI DSS” means the Payment Card Industry Data Security Standard, issued by the Payment Card Industry Security Standards Council.

 

“Permitted Liens” means: (a) Liens for Taxes or assessments that are (i) not yet due or delinquent or (ii) being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with U.S. GAAP; (b) statutory landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, workmen’s, materialmen’s or repairmen’s liens or other like Liens arising or incurred in the ordinary course of business which do not individually or in the aggregate detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company or the Company Subsidiaries; (c) with respect to the Leased Real Property, (i) easements, covenants, conditions, restrictions or other similar matters of record that do not materially impair the use, occupancy or value of such Leased Real Property, including any other agreements, conditions or restrictions that are shown by a current and accurate title report or other similar report or listing (including easements for streets, alleys, highways, telephone lines, power lines, and railways), (ii) zoning, building, subdivision or other similar requirements or restrictions which are imposed by any Governmental Authority of competent jurisdiction which are not violated by the current use or occupancy of such Leased Real Property or the operation of the business thereon and (iii) mechanics liens and similar liens for labor, materials or supplies provided with respect to such Leased Real Property incurred in the ordinary course of business for amounts which are not due and payable; (d) pledges or deposits under workmen’s compensation Laws, unemployment insurance Laws, social security, retirement or similar legislation, or good-faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such entity is a party, or deposits to secure public or statutory obligations of such entity or to secure or appeal bonds to which such entity is a party, or deposits as security for contested Taxes, in each case incurred or made in the ordinary course of business; (e) non-exclusive licenses and similar non-exclusive rights granted by the Company with respect to Intellectual Property rights granted in the ordinary course of business; (f) Liens, charges, fees or assessments for business parks, industrial parks or other similar organizations not yet due and payable; and (g) Liens to the extent specifically disclosed or reflected on the consolidated balance sheet of the Company for the year ended December 31, 2023 (or any notes thereto) or securing Indebtedness or other obligations reflected on such balance sheet or otherwise disclosed on the Company Disclosure Schedule.

 

“Person” means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Authority or other entity of any kind or nature.

 

“Personal Information” means any information or data regulated by Privacy/Data Security Laws.

 

“Plans” means all Employee Benefit Plans that are maintained, contributed to, required to be contributed to, or sponsored by the Company or any Company Subsidiary for the benefit of any current or former employee, officer, director, consultant and/or other service provider, or under which the Company or any Company Subsidiary or ERISA Affiliate has or could reasonably be expected to incur any liability (contingent or otherwise).

 

“Pre-Closing Flow-Through Tax Return” means any Tax Return relating to Pre-Closing Flow-Through Taxes.

 

“Pre-Closing Flow-Through Taxes” means U.S. federal income, state, and local taxes and any other Taxes determined on a flow-through basis (i.e., reported at the entity level but with respect to which items of income, gain, loss or deduction or other Tax attributes or Taxes are allocated to the direct or indirect beneficial owners of the entity) with respect to Company LLC or any of its Subsidiaries relating to any Pre-Closing Tax Period.

 

“Pre-Closing Tax Period” means any Tax period (or portion of any Tax period) ending on or prior to the Closing Date.

 

“Preferred Stock” means the preferred stock, par value $0.00001 per share, of the Company.

 

“Privacy/Data Security Laws” means all Laws governing the receipt, collection, use, storage, processing, sharing, security, disclosure, or transfer of Personal Information and any applicable Laws concerning requirements for website and mobile application privacy policies, any outbound call, text message and e-mail marketing.

 

“Real Property Leases” means the leases, subleases, licenses or other agreements, including all amendments, extensions, renewals, guaranties or other agreements with respect thereto, under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (including any Leased Real Property).

 

“Reciprocal License” means a license of an item of Software that requires or that conditions any rights granted in such license upon (a) the disclosure, distribution or licensing of any other Software (other than such item of Software as provided by a third party in its unmodified form), (b) a requirement that any disclosure, distribution or licensing of any other Software (other than such item of Software in its unmodified form) be at no charge, (c) a requirement that any other licensee of the Software be permitted to access the source code of, modify, make derivative works of, or reverse-engineer any such other Software, (d) a requirement that such other Software be redistributable by other licensees, or (e) the grant of any patent rights (other than patent rights in such item of Software), including non-assertion or patent license obligations (other than patent obligations relating to the use of such item of Software).

 

“Registered Intellectual Property” means Company-Owned IP that is the subject of registration (or an application for registration) with an applicable Governmental Authority or, in the case of domain names, with a domain name registrar.

 

“Regulation S-K” means Regulation S-K promulgated under the Securities Act.

 

“Related Party” means, with respect to a Party, such Party and any of such Party’s respective former, current or future Affiliates and any of the foregoing’s respective former, current or future, direct or indirect, officers, directors, employees, Affiliates, shareholders, equity holders, managers, members, partners, agents, attorneys, advisors, financing sources or other Representatives or any of the foregoing’s respective successors or assigns.

 

“Repaid Indebtedness” means the Indebtedness for borrowed money pursuant to the Convertible Notes.

 

“Representative” means, with respect to any Person, its directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, and other representatives and advisors.

 

“Rollover” means the “Rollover” (as defined in the Support Agreements) of Class A Common Stock and Company LLC Units by the Rollover Stockholders pursuant to the Support Agreements.

 

“Rollover Units” means the Company LLC Units that the Rollover Stockholders will contribute to Parent in the Rollover pursuant to the Support Agreements.

 

“Sanctioned Person” means at any time any person (a) listed on any Sanctions-related list of designated or blocked persons, (b) the government of, resident in, or organized under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (which includes, as of the date of this Agreement, Cuba, Iran, North Korea, Syria, the Crimea region, the so-called “Donetsk People’s Republic,” and the so-called “Luhansk People’s Republic” regions), or (c) majority-owned or controlled by any of the foregoing

 

“Sanctions” means those trade, economic and financial sanctions Laws, regulations, embargoes, and restrictive measures administered or enforced by (a) the United States (including without limitation the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, or the U.S. Department of Commerce), (b) the European Union and enforced by its member states, (c) the United Nations, (d) His Majesty’s Treasury, or (e) any other similar Governmental Authority with jurisdiction over the Company or any Company Subsidiary from time to time.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Services” means any products and services provided by the Company in the business of marketing, renting and managing vacation properties on behalf of third party owners for rent or lease to consumers for transient and short term stays.

 

“Software” means all computer software (in object code or source code format), and related documentation and materials.

 

“Solvent” means, with respect to any Person, that (a) the fair saleable value (determined on a going concern basis) of the assets of such Person, together with its Subsidiaries, taken as a whole, is greater than the total amount of such Person’s liabilities (including all liabilities, whether or not reflected on a balance sheet prepared in accordance U.S. GAAP, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed); (b) such Person is able to pay its debts and obligations in the ordinary course of business as they become due; and (c) such Person, together with its Subsidiaries, taken as a whole, will not have an unreasonably small amount of capital to carry on its businesses and all businesses in which it is about to engage.

 

“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by such Person or by one or more of its Subsidiaries. For the avoidance of doubt, Company LLC, and any Subsidiary of Company LLC, shall be considered a Subsidiary of the Company for purposes of this Agreement.

 

“Superior Proposal” means a bona fide written Acquisition Proposal (with references to fifteen (15%) being deemed to be replaced with references to fifty percent (50%)) by a Person or Group (other than Parent, Merger Subs and their respective Affiliates) that (a) was not the result or effect of a breach of Section 6.2 and (b) the Company Board, acting upon the recommendation of the Special Committee or the Special Committee determines in good faith, after consultation with its financial advisors and outside legal counsel, is reasonably likely to be consummated in accordance with its terms, and if consummated, would be more favorable, from a financial point of view, to the Unaffiliated Stockholders (in their capacity as such) than the Mergers, taking into account (x) any revisions to this Agreement committed to by Parent in writing prior to the time of such determination; and (y) those factors and matters deemed relevant by the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee, which may include (A) the identity of the Person making the proposal; (B) the likelihood of consummation in accordance with the terms of the Acquisition Proposal; and (C) legal, financial (including availability of financing (to the extent applicable), financing terms and the form, amount and timing of payment of consideration), regulatory, certainty of closing, timing and other aspects of such Acquisition Proposal.

 

“Supplier” means any person that supplies inventory or other materials or personal property, components, or other goods or services (including, design, development and manufacturing services) that comprise or are utilized in, including in connection with the design, development, or sale of, the Services of the Company or any Company Subsidiary.

 

“Tax” or “Taxes” means any and all U.S. federal, state and local and non-U.S. taxes, duties, imposts, fees, levies, assessments or any other governmental charges in the nature of a tax, including, but not limited to, income, profits, capital, excise, property, sales, use, employment turnover, value added and franchise taxes, deductions and withholdings, together with all interest, penalties, and additions to tax imposed with respect to such amounts by any Governmental Authority.

 

“Tax Receivable Agreement” means the Tax Receivable Agreement, dated as of December 6, 2021, by and among the Company, Company LLC and the parties named therein.

 

“Tax Return” means any return, report, declaration, claim for refund, information return or other similar document filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Tax, including any schedule, attachment or supplement thereto, and including any amendment thereof.

 

“Third Person” means any Person or Group, other than (a) the Company or any of its controlled Affiliates or (b) Parent, Merger Subs, the Guarantors or any their respective Affiliates or any Group including Parent, Merger Subs, the Guarantors or any their respective Affiliates.

 

“Treasury Regulations” means the temporary, proposed and final regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

 

“Unaffiliated Stockholders” means the holders of Company Stock (in their capacity as such), excluding those shares of Company Stock held, directly or indirectly, by or on behalf of the Rollover Stockholders.

 

“Willful Breach” means a material breach of this Agreement that is a consequence of a willful or deliberate act or failure to act by a Party that knows or would reasonably be expected to have known that the taking of such act or failure to act would, or would reasonably be expected to, cause a breach of this Agreement.

 

Term	Section
Accounting Arbitration	4.7(h)
Accounting Firm	4.7(e)
Action	5.1(j)
Additional Merger Consideration	4.7(h)(iii)
Adjusted Company Unit Count	4.7(c)
Adjusted Liquidity Amount	4.7(c)
Adjusted Merger Consideration	4.7(b)
Adjustment Dispute Notice	4.7(d)
Adjustment Measurement Date	4.7(b)
Adjustment Statement	4.7(b)
Agreement	Preamble
Alternative Acquisition Agreement	6.2(c)(iv)
Amendment Fee Payment Date	6.10
Amendment Fees	6.10

Proxy Statement	6.3(a)
PSU Cash Award	4.5(b)(iii)
Real Property	5.1(n)(iv)
Remedies Exceptions	5.1(d)(i)
Rollover Stockholders	Recitals
RSU Cash Award	4.5(a)(ii)
Schedule 13e-3	6.3(a)
SEC	5.1
SEC Clearance Date	6.3(c)
Share Price Company PSU	4.5(b)(ii)
Shareholder Representative	4.7(i)
Special Committee	Recitals
Specified Acquisition	6.1(d)
Support Agreements	Recitals
Surviving Corporation	1.2(b)
Surviving LLC	1.2(a)
Tail Period	6.11(c)
Takeover Law	5.1(x)
TRA Amendment	Recitals
Transfer Taxes	9.12
Undisputed Merger Consideration	4.7(h)(i)
Unvested Company PSU	4.5(b)(ii)
Unvested Company RSUs	4.5(a)(ii)
Vested Company PSU	4.5(b)(i)
Vested Company PSU Consideration	4.5(b)(i)
Vested Company RSU	4.5(a)(i)
Vested Company RSU Consideration	4.5(a)(i)
Virtual Data Room	9.15(b)
WARN Act	5.1(q)(iv)
Weekly Company Unit Statement	6.19

Exhibit A
Form of Support Agreement

 

[Intentionally omitted.]

 

Exhibit B
Certificate of Incorporation of the Surviving Corporation

 

[Intentionally omitted.]

 

Exhibit C
Merger Consideration Adjustment Schedule

 

[See attached]

---