1003-00003 · Harrowgate Private Equity Fund IV LP · Transaction Documents/Merger Agreement

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY

AGREEMENT AND PLAN OF MERGER

among

HARROWGATE PRIVATE EQUITY FUND IV LP, a Delaware limited partnership,

HARROWGATE VELOCITY MERGER SUB INC., a Delaware corporation,

and

VELOPAY SYSTEMS, INC., a Delaware corporation

Dated as of [●], 2025

DRAFT — January 17, 2025 Calderwood & Harkness LLP Matter No. 1003-00003

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered into as of [●], 2025, by and among Harrowgate Private Equity Fund IV LP, a Delaware limited partnership ("Parent"), Harrowgate Velocity Merger Sub Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent ("Merger Sub"), and VeloPay Systems, Inc., a Delaware corporation (the "Company"). Parent, Merger Sub, and the Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Parent is a Delaware limited partnership with its principal office at 300 King Street, Suite 4200, Wilmington, Delaware 19801. Parent's sole general partner is Harrowgate Capital Management IV LLC, a Delaware limited liability company ("Guarantor" or the "GP");

WHEREAS, Merger Sub is a Delaware corporation and a direct, wholly-owned subsidiary of Parent, formed solely for the purpose of effecting the Merger (as defined herein). Merger Sub was incorporated on [●] , Delaware File Number [●] , and its registered agent is Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801. Merger Sub has not engaged in any activities other than those incidental to its formation and the transactions contemplated by this Agreement. Merger Sub has no assets, liabilities, or operations other than those incident to its formation and the transactions contemplated hereby;

WHEREAS, the Company is a Delaware corporation with its principal office at 1455 Innovation Parkway, Suite 800, Austin, Texas 78759. The Company operates a cloud-based payments processing and merchant acquiring platform through its direct and indirect subsidiaries;

WHEREAS, the respective boards of directors (or equivalent governing bodies) of Parent, Merger Sub, and the Company have approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger and the other transactions contemplated hereby, upon the terms and subject to the conditions set forth herein;

WHEREAS, the Board of Directors of the Company (the "Company Board") has (i) determined that this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, and (iii) resolved to recommend that the stockholders of the Company adopt this Agreement and approve the Merger on the terms and subject to the conditions set forth herein;

WHEREAS, it is intended that, for United States federal income tax purposes, the Merger shall be treated as a taxable acquisition of the Company's stock, and this Agreement is not intended to constitute a "plan of reorganization" within the meaning of Treasury Regulation Section 1.368-2(g);

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent's willingness to enter into this Agreement, certain stockholders of the Company (the "Support Stockholders") are entering into a Stockholder Support Agreement with Parent, dated as of the date hereof (the "Stockholder Support Agreement"), pursuant to which, among other things, such Support Stockholders have agreed to deliver written consents in favor of the adoption of this Agreement and approval of the Merger;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the Company's willingness to enter into this Agreement, Harrowgate Capital Management IV LLC is delivering a Limited Guarantee in favor of the Company (the "Limited Guarantee"), guaranteeing certain obligations of Parent hereunder, including the payment of the Reverse Termination Fee ; and

WHEREAS, the Merger is intended to be effected as a reverse triangular merger pursuant to Section 251 of the Delaware General Corporation Law (the "DGCL"), with the Company surviving the Merger as a wholly-owned subsidiary of Parent.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations, warranties, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Definitions

As used in this Agreement, the following terms shall have the meanings ascribed to them below:

"Acquisition Proposal" means any inquiry, proposal, indication of interest, or offer from any Person (other than Parent, Merger Sub, or any of their respective Affiliates) relating to any (a) direct or indirect acquisition (whether by purchase, merger, consolidation, business combination, recapitalization, share exchange, joint venture, or otherwise) of assets of the Company and its Subsidiaries constituting or more of the consolidated assets of the Company and its Subsidiaries, or to which or more of the consolidated revenues of the Company and its Subsidiaries are attributable, (b) direct or indirect acquisition (whether by purchase, tender offer, exchange offer, or otherwise) of or more of any class of equity securities of the Company or any of its Subsidiaries, (c) merger, consolidation, business combination, recapitalization, liquidation, dissolution, or similar transaction involving the Company or any of its Subsidiaries, or (d) any combination of the foregoing transactions, in each case, other than the transactions contemplated by this Agreement.

"Action" means any claim, action, suit, arbitration, inquiry, examination, investigation, audit, or proceeding by or before any Governmental Authority.

"Adverse Recommendation Change" means the Company Board or any committee thereof (a) failing to include the Company Board Recommendation in the Information Statement, (b) withdrawing, qualifying, amending, or modifying, or publicly proposing to withdraw, qualify, amend, or modify, the Company Board Recommendation in a manner adverse to Parent, (c) approving, endorsing, or recommending, or publicly proposing to approve, endorse, or recommend, any Acquisition Proposal, or (d) resolving to take, or publicly announcing an intention to take, any of the actions described in clauses (a) through (c) above.

"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, as such terms are used in and construed under Rule 12b-2 under the Exchange Act.

"Aggregate Merger Consideration" means One Billion Nine Hundred Million Dollars ($1,900,000,000).

"Bankruptcy and Equity Exceptions" means the effect on enforceability of (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar Laws of general applicability relating to or affecting creditors' rights generally, and (b) general equitable principles (whether considered in a proceeding in equity or at law).

"Book-Entry Share" means a non-certificated share of Company Common Stock represented by book-entry.

"Business Day" means any day other than a Saturday, Sunday, or any day on which commercial banking institutions in New York, New York or Wilmington, Delaware are authorized or required by Law to close.

"Buyer Material Adverse Effect" means any event, change, effect, development, state of facts, condition, circumstance, or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Parent or Merger Sub to consummate the transactions contemplated hereby on a timely basis.

"Certificate" means a physical stock certificate representing one or more shares of Company Common Stock.

"Certificate of Merger" means the certificate of merger to be filed with the Secretary of State of the State of Delaware with respect to the Merger, in the form required by and executed in accordance with Section 251 of the DGCL.

"Closing" has the meaning set forth in Section 2.2.

"Closing Date" has the meaning set forth in Section 2.2.

"Co-Invest Vehicle" means Harrowgate Velocity Co-Invest LP, a Delaware limited partnership.

"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.

"Company Board" means the Board of Directors of the Company.

"Company Board Recommendation" means the recommendation of the Company Board that the stockholders of the Company adopt this Agreement and approve the Merger.

"Company Common Stock" means the common stock, par value $0.001 per share, of the Company.

"Company Disclosure Schedules" means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement.

"Company Material Adverse Effect" has the meaning set forth in Section 4.1.

"Company Options" means outstanding options to purchase shares of Company Common Stock granted under the Company Stock Plans.

"Company RSUs" means outstanding restricted stock units relating to shares of Company Common Stock granted under the Company Stock Plans.

"Company Stock Plans" means, collectively, the VeloPay Systems, Inc. 2017 Equity Incentive Plan, the VeloPay Systems, Inc. 2021 Equity Incentive Plan, and any other equity compensation plan, agreement, or arrangement maintained by the Company or any of its Subsidiaries pursuant to which equity or equity-based awards have been or may be granted.

"Company Stockholder Approval" has the meaning set forth in Section 4.5.

"Company Warrants" means outstanding warrants to purchase shares of Company Common Stock.

"Confidentiality Agreement" means the Mutual Confidentiality and Non-Disclosure Agreement between Parent and the Company, dated October 14, 2024, as may be amended from time to time.

"Consent" means any consent, approval, waiver, authorization, order, permit, license, or clearance of or from, or notice, filing, registration, or declaration to, any Person or Governmental Authority.

"Contract" means any legally binding agreement, contract, lease, sublease, license, sublicense, instrument, note, bond, mortgage, indenture, commitment, undertaking, arrangement, or understanding (whether written or oral).

"Credit Agreement" means the credit agreement to be entered into in connection with the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter.

"D&O Indemnified Parties" has the meaning set forth in Section 7.5(a).

"D&O Tail Policy" has the meaning set forth in Section 7.5(b).

"DGCL" means the General Corporation Law of the State of Delaware, as amended from time to time.

"Debt Commitment Letter" means the commitment letter, dated as of [●] , 2025 (Reference: CRE-2025-SPF-[●] ), from Tralvendo National Bank and Prairie State Bank, N.A. to Parent, pursuant to which such financial institutions have committed, subject to the terms and conditions thereof, to provide the Debt Financing.

"Debt Financing" means the debt financing contemplated by the Debt Commitment Letter, consisting of (a) a senior secured term loan facility in an aggregate principal amount of Five Hundred Million Dollars ($500,000,000) and (b) a senior secured revolving credit facility in an aggregate principal amount of Two Hundred Sixty Million Dollars ($260,000,000), for a total committed amount of Seven Hundred Sixty Million Dollars ($760,000,000), which facilities are fully committed as of the date of the Debt Commitment Letter.

"Debt Financing Sources" means Tralvendo National Bank and Prairie State Bank, N.A., together with their respective Affiliates, officers, directors, employees, agents, and representatives, and their respective successors and assigns.

"Deductible" has the meaning set forth in Section 10.4(b).

"Dissenting Shares" has the meaning set forth in Section 3.5(a).

"Effective Time" has the meaning set forth in Section 2.3.

"Environmental Law" means any Law relating to pollution, protection of the environment or natural resources, or exposure of any Person to Hazardous Substances, including the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, and their state and local counterparts.

"Equity Commitment Letter" means the equity commitment letter, dated as of the date hereof, from Harrowgate Capital Management IV LLC to Parent, pursuant to which Harrowgate Capital Management IV LLC has committed to contribute or cause to be contributed equity financing in an aggregate amount of One Billion One Hundred Forty Million Dollars ($1,140,000,000) to Parent.

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

"Escrow Agent" means Garrison Trust Company, with its principal office at One Liberty Plaza, 42nd Floor, New York, New York 10006 (Contact: Valerie Drummond; Reference: GT-ESC-2025-[●]).

"Escrow Agreement" means the Escrow Agreement to be entered into at the Closing among the Surviving Corporation (on behalf of Parent), the Stockholder Representative, and the Escrow Agent, in substantially the form attached hereto as Exhibit B.

"Escrow Amount" means of the Aggregate Merger Consideration.

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

"Exchange Fund" has the meaning set forth in Section 3.6(b).

"FCPA" means the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

"FIRPTA" means the Foreign Investment in Real Property Tax Act, as amended, including the provisions of Sections 897 and 1445 of the Code and the Treasury Regulations promulgated thereunder.

"Financing Sources" means the entities that have committed to provide or arrange or otherwise entered into agreements in connection with the Debt Financing, including the parties to the Debt Commitment Letter, any joinder agreements, credit agreements, loan agreements, or indentures, together with their respective Affiliates and their respective officers, directors, employees, agents, and representatives, and their respective successors and assigns.

"Fraud" means actual and intentional common law fraud (as opposed to constructive fraud, negligent misrepresentation, or other fraud-based claim based on recklessness or negligence) with respect to the making of a representation or warranty set forth in this Agreement.

"Fully Diluted Shares" means ninety-five million (95,000,000) shares, comprising (a) 82,400,000 shares of Company Common Stock issued and outstanding as of the date hereof, (b) 7,600,000 shares of Company Common Stock subject to outstanding Company Options, (c) 3,200,000 shares of Company Common Stock subject to outstanding Company RSUs, and (d) 1,800,000 shares of Company Common Stock subject to outstanding Company Warrants.

"Fundamental Representations" means the representations and warranties of the Company set forth in Section 4.1 (Organization, Good Standing, and Qualification), Section 4.3 (Capitalization), Section 4.4 (Authority; Due Authorization), Section 4.5 (Company Stockholder Approval), and Section 4.21 (Brokers and Finders), and the representations and warranties of Parent and Merger Sub set forth in Section 5.1 (Organization, Good Standing, and Qualification), Section 5.2 (Authority; Due Authorization), Section 5.5 (Merger Sub Activities), and Section 5.8 (Brokers and Finders).

"GAAP" means generally accepted accounting principles in the United States, as in effect from time to time, consistently applied.

"Governmental Authority" means any federal, state, local, municipal, or foreign government or governmental, regulatory, or administrative authority, instrumentality, agency, body, bureau, or commission, or any court, tribunal, or judicial or arbitral body of competent jurisdiction, including the United States Securities and Exchange Commission, the United States Department of Justice, the United States Federal Trade Commission, and the United States Internal Revenue Service.

"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

"Hazardous Substances" means any chemical, material, substance, waste, pollutant, or contaminant that is listed, defined, or regulated as "hazardous," "toxic," or words of similar import under any Environmental Law.

"Indemnification Cap" means of the Aggregate Merger Consideration.

"Information Statement" means the information statement to be prepared and mailed by the Company to its stockholders in accordance with Section 228(e) of the DGCL and applicable regulations under the Exchange Act, together with any amendments or supplements thereto.

"intellectual Property" means all intellectual property and proprietary rights of every kind and nature, including all (a) patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (b) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) copyrights, works of authorship, and all applications, registrations, and renewals in connection therewith, (d) trade secrets, know-how, inventions, processes, techniques, algorithms, software (including source code and object code), data, databases, and compilations of data, (e) domain names and uniform resource locators, and (f) all other proprietary rights.

"Investment Canada Act" means the Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.), as amended, and the regulations promulgated thereunder.

"IRS" means the United States Internal Revenue Service.

"Knowledge" means, with respect to the Company, the actual knowledge of Nathan Aldridge (Chief Executive Officer), Sonia Reyes-Watkins (Chief Operating Officer), Marcus Langford (Chief Financial Officer), and Danielle Moreau (General Counsel), in each case, after With respect to Parent, "Knowledge" means the actual knowledge of Priya Deshmukh and Thomas Harrowgate, in each case, after

"Law" means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, order, decree, directive, guideline, or policy of any Governmental Authority having the force or effect of law.

"Letter of Transmittal" has the meaning set forth in Section 3.6(c).

"Lien" means any lien, pledge, hypothecation, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any stockholder or similar agreement, or encumbrance of any kind.

"Limited Guarantee" means the Limited Guarantee, dated as of the date hereof, delivered by Harrowgate Capital Management IV LLC in favor of the Company, in substantially the form attached hereto as Exhibit H.

"Losses" means any and all losses, damages, liabilities, deficiencies, claims, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees and expenses of investigation and defense), but excluding punitive damages (except to the extent actually paid to a third party in connection with a third-party claim) and consequential damages (except to the extent reasonably foreseeable).

"Material Contract" has the meaning set forth in Section 4.14.

"Merger" means the merger of Merger Sub with and into the Company, with the Company surviving such merger as a wholly-owned subsidiary of Parent, pursuant to this Agreement and in accordance with Section 251 of the DGCL.

"Merger Consideration" means the aggregate cash payable pursuant to Article III in respect of the shares of Company Common Stock, Company Options, Company RSUs, and Company Warrants, as applicable.

"Notice Period" has the meaning set forth in Section 7.3(f).

"Option Spread Payment" has the meaning set forth in Section 3.2(a).

"Outside Date" means the date that is nine (9) months following the date of this Agreement; provided, however, that if on the initial Outside Date any of the conditions set forth in Section 8.1(a), Section 8.1(e), or Section 8.1(f) have not been satisfied (or waived) but all other conditions set forth in Article VIII have been satisfied or waived (or are capable of being satisfied at the Closing), then the Outside Date shall automatically be extended to a date that is three (3) months after the initial Outside Date (the "Extended Outside Date"); provided, further, that the party seeking to rely on such extension is not then in material breach of this Agreement.

"Paying Agent" means Keystone Pacific Transfer Services Inc., or such other paying agent as may be appointed by Parent with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned, or delayed).

"Paying Agent Agreement" means the paying agent agreement to be entered into by and among Parent (or the Surviving Corporation), the Paying Agent, and the Stockholder Representative, in substantially the form attached hereto as Exhibit K.

"Per Share Merger Consideration" means Twenty Dollars ($20.00) per share in cash, without interest and subject to any applicable withholding of Taxes.

"Permitted Liens" means (a) mechanics', carriers', workmen's, repairmen's, warehousemen's, and other similar Liens arising or incurred in the ordinary course of business, (b) Liens for Taxes and other governmental charges and assessments that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (c) Liens arising under workers' compensation, unemployment insurance, social security, or similar legislation, (d) easements, covenants, conditions, restrictions, and other similar matters affecting title to real property that do not materially impair the use thereof for the purposes for which they are held, (e) statutory landlord's liens and Liens granted to landlords under any lease or sublease, (f) Liens that will be released at or prior to the Closing, and (g) Liens arising in the ordinary course of business that, individually or in the aggregate, do not materially detract from the value of, or materially impair the use of, the property subject thereto.

"Person" means any individual, corporation, partnership (general or limited), limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or any other entity.

"Pre-Closing Taxes" means all Taxes of the Company and its Subsidiaries for any taxable period ending on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, determined in accordance with Section 10.2.

"R&W Insurance Policy" means the buyer-side representations and warranties insurance policy to be obtained by Parent, with a policy limit of One Hundred Ninety Million Dollars ($190,000,000) and a retention of Nineteen Million Dollars ($19,000,000), as more fully described in Section 5.9.

"Representatives" means, with respect to any Person, such Person's officers, directors, managers, employees, agents, and advisors (including attorneys, accountants, consultants, investment bankers, and financial advisors).

"Reverse Termination Fee" means of the Aggregate Merger Consideration.

"Rollover Agreement" means the Rollover Agreement to be entered into by and among Parent, the Co-Invest Vehicle, and the Rollover Participants, in substantially the form attached hereto as Exhibit D.

"Rollover Participant" has the meaning set forth in Section 3.9(a).

"SEC" means the United States Securities and Exchange Commission.

"Seller Retention Amount" means Nine Million Five Hundred Thousand Dollars ($9,500,000), representing the portion of the R&W Insurance Policy retention to be borne by the Company's former stockholders.

"Solvent" means, with respect to any Person as of any date of determination, that as of such date (a) the sum of the assets (at a fair valuation) of such Person and its Subsidiaries, on a consolidated basis, exceeds the sum of all liabilities (including contingent and unliquidated liabilities) of such Person and its Subsidiaries, on a consolidated basis, (b) such Person and its Subsidiaries, on a consolidated basis, have adequate capital with which to engage in their businesses as presently conducted, and (c) such Person and its Subsidiaries, on a consolidated basis, are able to pay their debts and obligations as they become due in the ordinary course of business.

"Stockholder Representative" means Nathan Aldridge, in his capacity as representative of the Company's former stockholders appointed pursuant to Section 3.8.

"Stockholder Representative Expense Fund" has the meaning set forth in Section 3.8(b).

"Stockholder Support Agreement" has the meaning set forth in the Recitals.

"Straddle Period" means any taxable period beginning on or before and ending after the Closing Date.

"Subsidiary" means, with respect to any Person, any corporation, limited liability company, partnership, joint venture, trust, or other legal entity of which such Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, limited liability company, partnership, joint venture, trust, or other legal entity. With respect to the Company, "Subsidiary" includes VeloPay Processing LLC, a Delaware limited liability company; VeloPay Canada Inc., an Ontario corporation; VeloPay Europe, Unipessoal Lda., a Portuguese limitada; VeloPay Fraud intelligence Inc., a Delaware corporation; and PayStream Gateway LLC, a Delaware limited liability company.

"Superior Proposal" has the meaning set forth in Section 7.3(e).

"Surviving Corporation" means the Company, as the surviving corporation in the Merger.

"Tax" or "Taxes" means all federal, state, local, and foreign income, profit, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp, payroll, sales, use, transfer, employment, unemployment, disability, value-added, alternative or add-on minimum, estimated, excise, real property, personal property (tangible and intangible), withholding, and other taxes, charges, fees, levies, or assessments of any kind whatsoever, together with all interest, penalties, fines, and additions to tax imposed with respect thereto.

"Tax Return" means any return, declaration, report, form, claim for refund, or information return or statement required to be filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto and including any amendment thereof.

"Termination Fee" means of the Aggregate Merger Consideration.

"Transaction Documents" means this Agreement, the Stockholder Support Agreement, the Equity Commitment Letter, the Debt Commitment Letter, the Limited Guarantee, the Escrow Agreement, the Paying Agent Agreement, the Rollover Agreement, the Stockholder Representative Agreement, the Non-Competition and Non-Solicitation Agreements, and each other document or agreement contemplated hereby or thereby.

"Transaction Expenses" means all fees, costs, and expenses (including all fees and expenses of counsel, advisors, accountants, investment bankers, and other Representatives) incurred by the Parties in connection with the negotiation, preparation, execution, and performance of this Agreement and the consummation of the transactions contemplated hereby, estimated at approximately Forty-Eight Million Five Hundred Thousand Dollars ($48,500,000) in the aggregate (buyer and seller combined).

"Treasury Regulations" means the United States Treasury Regulations promulgated under the Code.

"Willful Breach" means a material breach of this Agreement that is a consequence of an intentional act or intentional failure to act by the breaching party with the knowledge that such act or failure to act would, or would reasonably be expected to, constitute a breach of this Agreement.

Section 1.2 — Interpretation

Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Exhibit," and "Schedule" refer to the specified Article, Section, Exhibit, or Schedule of or to this Agreement unless otherwise specified; (e) the word "including" and words of similar import when used in this Agreement shall mean "including, without limitation," unless the context otherwise requires or unless otherwise specified; (f) the word "or" shall not be exclusive; (g) 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"; (h) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation; (i) references to "days" shall mean calendar days unless otherwise specified; (j) references to "dollars" or "$" shall mean U.S. dollars; (k) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified as Business Days; (l) all Article, Section, Exhibit, and Schedule references are to the Articles, Sections, Exhibits, and Schedules of this Agreement unless otherwise specified; and (m) the headings and captions contained in this Agreement and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or 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.

ARTICLE II — THE MERGER

Section 2.1 — The Merger

Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 251 of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the Surviving Corporation after the Merger and shall become a direct, wholly-owned subsidiary of Parent. The Merger shall have the effects set forth in the applicable provisions of the DGCL, including Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, powers, and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, and duties of the Company and Merger Sub shall become the debts, liabilities, and duties of the Surviving Corporation.

Section 2.2 — Closing

Subject to the terms and conditions of this Agreement, the closing of the Merger (the "Closing") shall take place at 10:00 a.m., Eastern time, on the Business Day following the date on which the last of the conditions set forth in Article VIII has been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), at the offices of Calderwood & Harkness LLP, 787 Seventh Avenue, 38th Floor, New York, New York 10019, or by electronic exchange of documents and signatures (including by portable document format (.pdf) or other electronic transmission), or at such other time, date, or place as Parent and the Company may mutually agree in writing. The date on which the Closing actually occurs is referred to herein as the "Closing Date."

If the Closing shall not have occurred on or before the Outside Date (as such date may be extended in accordance with the terms hereof), this Agreement may be terminated in accordance with Article IX, subject to and in accordance with the provisions thereof.

Section 2.3 — Effective Time

On the Closing Date, the Parties shall cause a Certificate of Merger to be duly prepared, executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Section 251 of the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware (or at such later date and time as may be agreed by Parent and the Company in writing and specified in the Certificate of Merger in accordance with the DGCL) (the "Effective Time"). For purposes of such filing, the Delaware file number of the Company is 5748392, and the Delaware file number of Merger Sub is [●] .

Section 2.4 — Certificate of Incorporation of the Surviving Corporation

At the Effective Time, the certificate of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety to read as set forth in Exhibit A hereto (the "Amended and Restated Certificate of Incorporation"), and as so amended and restated shall be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with the DGCL and such certificate of incorporation; provided, however, that the provisions of the Amended and Restated Certificate of Incorporation relating to the indemnification, exculpation, and limitation of liability of the directors and officers of the Company immediately prior to the Effective Time shall not be amended, repealed, or otherwise modified in a manner that would adversely affect the rights thereunder of such Persons for a period of six (6) years following the Effective Time, unless such modification is required by applicable Law.

Section 2.5 — Bylaws of the Surviving Corporation

At the Effective Time, the bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in their entirety in a form mutually agreed by Parent and the Company no later than Business Days prior to the Closing Date, and as so amended and restated shall be the bylaws of the Surviving Corporation until thereafter amended in accordance with the DGCL, the certificate of incorporation of the Surviving Corporation, and such bylaws.

Section 2.6 — Directors and Officers of the Surviving Corporation

(a) The directors of the Surviving Corporation from and after the Effective Time shall be the individuals designated by Parent in writing to the Company at least two (2) Business Days prior to the Closing Date. Such individuals shall hold office in accordance with the Amended and Restated Certificate of Incorporation and bylaws of the Surviving Corporation until the earlier of their respective resignations or removals or until their respective successors are duly elected or appointed and qualified, as the case may be.

(b) The officers of the Surviving Corporation from and after the Effective Time shall initially be the officers of the Company as of immediately prior to the Effective Time, each of whom shall hold office in accordance with the Amended and Restated Certificate of Incorporation and bylaws of the Surviving Corporation until the earlier of their respective resignations or removals or until their respective successors are duly elected or appointed and qualified, as the case may be; provided that Parent shall have the right to change or replace any officer of the Surviving Corporation after the Effective Time in accordance with the organizational documents of the Surviving Corporation; provided, further, that Nathan Aldridge and Sonia Reyes-Watkins shall continue as Chief Executive Officer and Chief Operating Officer, respectively, for a period of not less than twelve (12) months following the Closing Date, subject to the terms of their respective employment arrangements .

ARTICLE III — MERGER CONSIDERATION; CONVERSION OF SHARES; TREATMENT OF EQUITY AWARDS

Section 3.1 — Conversion of Shares

At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or any holder of any securities of the Company or Merger Sub:

(a) Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares and (ii) shares of Company Common Stock held in the treasury of the Company) shall be converted into the right to receive Twenty Dollars ($20.00) in cash, without interest and subject to any applicable withholding of Taxes (the "Per Share Merger Consideration"). All such shares of Company Common Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration to be paid in consideration therefor upon the surrender of such Certificate or Book-Entry Share in accordance with Section 3.6, without interest.

(b) Merger Sub Stock. Each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger, be converted into and become one (1) validly issued, fully paid, and non-assessable share of common stock of the Surviving Corporation. From and after the Effective Time, each stock certificate of Merger Sub evidencing ownership of any such shares shall evidence ownership of such shares of common stock of the Surviving Corporation.

(c) Treasury Shares. Each share of Company Common Stock held in the treasury of the Company or owned by any direct or indirect wholly-owned Subsidiary of the Company immediately prior to the Effective Time shall be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor or in respect thereof.

(d) Parent Stock. Each share of capital stock or other equity interest of Parent issued and outstanding immediately prior to the Effective Time shall remain unchanged and shall not be affected by the Merger.

Section 3.2 — Treatment of Company Options

(a) Vested Company Options. At the Effective Time, each Company Option that is outstanding and vested (or that has become exercisable) immediately prior to the Effective Time and that has a per share exercise price that is less than the Per Share Merger Consideration shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of (i) the excess, if any, of the Per Share Merger Consideration over the per share exercise price of such Company Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time (the "Option Spread Payment"), less applicable withholding Taxes required to be withheld with respect to such payment. For the avoidance of doubt, as of the date hereof, the weighted average exercise price of outstanding Company Options is $12.84 per share, resulting in an average net spread per option of $7.16. Each Company Option that has a per share exercise price that is equal to or greater than the Per Share Merger Consideration shall be cancelled for no consideration.

(b) Unvested Company Options. At the Effective Time, each Company Option that is outstanding and not vested immediately prior to the Effective Time shall be cancelled, and

(c) The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company Options as set forth in this Section 3.2, including providing all required notices to holders and obtaining all required consents (or adopting any necessary amendments to the Company Stock Plans) to effectuate such treatment.

Section 3.3 — Treatment of Company RSUs

At the Effective Time, each Company RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of the Per Share Merger Consideration multiplied by the number of shares of Company Common Stock subject to such Company RSU, less applicable withholding Taxes required to be withheld with respect to such payment. Each Company RSU that is unvested immediately prior to the Effective Time shall, to the extent required, accelerate and become fully vested immediately prior to the Effective Time (and conditioned upon the occurrence of the Effective Time). For the avoidance of doubt, as of the date hereof, there are 3,200,000 Company RSUs outstanding, resulting in aggregate RSU payments of $64,000,000. The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company RSUs as set forth in this Section 3.3.

Section 3.4 — Treatment of Company Warrants

At the Effective Time, each Company Warrant that is outstanding immediately prior to the Effective Time and that has a per share exercise price that is less than the Per Share Merger Consideration shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of (i) the excess of the Per Share Merger Consideration over the per share exercise price of such Company Warrant, multiplied by (ii) the number of shares of Company Common Stock issuable upon exercise of such Company Warrant immediately prior to the Effective Time, less applicable withholding Taxes required to be withheld with respect to such payment. For the avoidance of doubt, as of the date hereof, there are 1,800,000 Company Warrants outstanding with a per share exercise price of $8.50, resulting in aggregate warrant payments of 1,800,000 multiplied by $11.50, equaling $20,700,000. Each Company Warrant that has a per share exercise price that is equal to or greater than the Per Share Merger Consideration shall be cancelled for no consideration. The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company Warrants as set forth in this Section 3.4.

Section 3.5 — Dissenting Shares

(a) Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has properly demanded appraisal of such shares in accordance with Section 262 of the DGCL (the "Dissenting Shares") shall not be converted into the right to receive the Per Share Merger Consideration pursuant to Section 3.1(a), but instead such holder shall be entitled only to such rights as are granted by Section 262 of the DGCL with respect to such Dissenting Shares.

(b) If any holder of Dissenting Shares shall fail to perfect or shall have effectively withdrawn or otherwise lost the right to appraisal under Section 262 of the DGCL, then, as of the later of (i) the Effective Time and (ii) the occurrence of such event, such holder's shares shall automatically be deemed to have been converted as of the Effective Time into the right to receive the Per Share Merger Consideration, without interest thereon, upon surrender of the Certificate or Book-Entry Share representing such shares in accordance with Section 3.6, and such shares shall no longer be Dissenting Shares.

(c) The Company shall give prompt notice to Parent of any demands for appraisal received by the Company, any withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company in connection therewith. Parent shall have the right to participate in all negotiations and proceedings with respect to such demands, in consultation with the Stockholder Representative, and the Company shall not, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), voluntarily make any payment with respect to, or settle, offer to settle, or otherwise negotiate, any such demands for appraisal.

Section 3.6 — Paying Agent; Exchange Procedures

(a) Appointment of Paying Agent. Prior to the Effective Time, Parent shall appoint Keystone Pacific Transfer Services Inc. as paying agent (the "Paying Agent") for purposes of paying the Per Share Merger Consideration to the former holders of Company Common Stock. Parent shall enter into a Paying Agent Agreement with the Paying Agent in substantially the form attached hereto as Exhibit K, which agreement shall be in form and substance reasonably acceptable to Parent and the Company.

(b) Exchange Fund. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, cash in an aggregate amount sufficient to pay the Per Share Merger Consideration in respect of all shares of Company Common Stock converted into the right to receive the Per Share Merger Consideration pursuant to Section 3.1(a) (net of the Escrow Amount and any Rollover amounts) (such aggregate cash amount being referred to herein as the "Exchange Fund"). The Exchange Fund shall not be used for any purpose other than the payment of the Per Share Merger Consideration to the former holders of Company Common Stock as provided herein.

(c) Letter of Transmittal. As promptly as practicable after the Effective Time (and in any event within Business Days thereof), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of Company Common Stock (i) a letter of transmittal (the "Letter of Transmittal") in substantially the form attached hereto as Exhibit I, which letter of transmittal shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book-Entry Shares to the Paying Agent, and shall be in customary form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions for use in effecting the surrender of Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration.

(d) Exchange Procedures. Upon (i) surrender to the Paying Agent of a Certificate (or an affidavit of loss in lieu thereof, together with an indemnity bond if required pursuant to Section 3.6(g)), together with a duly completed and validly executed Letter of Transmittal and such other documents as may be reasonably required by the Paying Agent, or (ii) receipt of an "agent's message" by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Book-Entry Share, less any amounts required to be withheld pursuant to Section 3.6(h). The Certificate so surrendered shall forthwith be cancelled. No interest shall be paid or accrued for the benefit of the holders of Certificates or Book-Entry Shares on the Per Share Merger Consideration payable upon the surrender of such Certificates or Book-Entry Shares.

(e) No Further Ownership Rights. From and after the Effective Time, (i) there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of shares of Company Common Stock that were outstanding immediately prior to the Effective Time, (ii) all shares of Company Common Stock outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be deemed to have been converted into the right to receive the Per Share Merger Consideration, and (iii) the holders of Certificates or Book-Entry Shares shall cease to have any rights with respect to Company Common Stock other than the right to receive the Per Share Merger Consideration (or, with respect to Dissenting Shares, the rights set forth in Section 3.5). If, at any time after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this Article III.

(f) Unclaimed Funds. Any portion of the Exchange Fund that remains undistributed to the holders of Company Common Stock as of the date that is months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any former holders of Company Common Stock who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for payment of the Per Share Merger Consideration to which they are entitled. Any amounts remaining unclaimed by former holders of Company Common Stock immediately prior to the time at which such amounts would otherwise escheat to, or become the property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

(g) Lost, Stolen, or Destroyed Certificates. In the event any Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, or destroyed and, if required by the Surviving Corporation or the Paying Agent, the posting by such Person of a bond in such reasonable amount as the Surviving Corporation or the Paying Agent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall deliver in exchange for such lost, stolen, or destroyed Certificate the applicable Per Share Merger Consideration.

(h) Withholding. Each of Parent, the Surviving Corporation, the Paying Agent, and any of their respective Affiliates shall be entitled to deduct and withhold from any consideration otherwise payable to any Person pursuant to this Article III such amounts as may be required to be deducted and withheld under the Code, or any provision of applicable state, local, or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 3.7 — Escrow Arrangements

(a) At the Closing, Parent shall deposit (or cause to be deposited) the Escrow Amount of with the Escrow Agent pursuant to the Escrow Agreement. The Escrow Amount shall be withheld on a pro rata basis from the Per Share Merger Consideration otherwise payable to the Company's stockholders (including the Rollover Participants, with respect to the cash portion of their consideration) in accordance with their relative pro rata share of the Aggregate Merger Consideration.

(b) The Escrow Amount shall serve as security for the indemnification obligations of the Company's former stockholders under Article X and shall be the primary source of recovery for indemnification claims by Parent and the Surviving Corporation under Section 10.2, subject to and in accordance with the terms and conditions of the Escrow Agreement and Article X.

(i) On the of the Closing Date, an amount equal to of the Escrow Amount less the aggregate amount of any pending or unresolved indemnification claims that have been properly noticed to the Stockholder Representative and the Escrow Agent prior to such date and that remain outstanding as of such date (such withheld amounts, the "First Release Holdback Amount"), shall be released by the Escrow Agent to the Stockholder Representative for distribution to the Company's former stockholders in accordance with their pro rata interests.

(ii) On the the Closing Date, the remaining balance of the Escrow Amount (including any First Release Holdback Amount to the extent that the related claims have been finally resolved without payment), less the aggregate amount of any pending or unresolved indemnification claims that have been properly noticed to the Stockholder Representative and the Escrow Agent prior to such date and that remain outstanding as of such date, shall be released by the Escrow Agent to the Stockholder Representative for distribution to the Company's former stockholders in accordance with their pro rata interests.

(iii) Any amounts retained by the Escrow Agent after the of the Closing Date in respect of pending or unresolved indemnification claims shall be released promptly upon the final resolution of such claims, with any remaining balance distributed to the Stockholder Representative for the benefit of the former stockholders.

(d) The Escrow Agreement shall be in substantially the form attached hereto as Exhibit B. The Escrow Agent shall be Garrison Trust Company, One Liberty Plaza, 42nd Floor, New York, New York 10006 (Contact: Valerie Drummond; Reference: GT-ESC-2025-[●]).

Section 3.8 — Stockholder Representative

(a) Each holder of Company Common Stock, Company Options, Company RSUs, and Company Warrants, by virtue of receiving the Per Share Merger Consideration or other amounts payable hereunder, shall be deemed to have irrevocably constituted and appointed Nathan Aldridge as the Stockholder Representative, and as the true and lawful agent and attorney-in-fact of each such holder, with full power of substitution, to act on behalf of such holder in connection with the administration and resolution of all matters arising under or in connection with Articles IX and X, including all matters relating to indemnification claims, escrow administration, post-closing purchase price adjustments (if any), and post-closing dispute resolution.

(b) The Stockholder Representative shall have the authority and power to (i) negotiate, resolve, settle, and compromise any and all indemnification claims under Article X, (ii) execute and deliver all documents and instruments on behalf of the former stockholders in connection with the Escrow Agreement, (iii) engage counsel, accountants, and other advisors, and (iv) take all actions and make all decisions as the Stockholder Representative may deem necessary or appropriate in connection with the foregoing. The decision, act, consent, or instruction of the Stockholder Representative shall constitute a decision of all former stockholders and shall be final, binding, and conclusive upon each such former stockholder. The Stockholder Representative shall be entitled to reimbursement of all reasonable out-of-pocket costs and expenses incurred in connection with the performance of his duties hereunder, which costs and expenses shall be paid from a Stockholder Representative Expense Fund of (the "Stockholder Representative Expense Fund") to be withheld from the Aggregate Merger Consideration at the Closing and held in a separate account for such purpose.

(c) The Stockholder Representative shall not be liable for any act or omission taken in good faith and reasonably believed by the Stockholder Representative to be authorized and within the scope of his authority. The former stockholders shall indemnify, defend, and hold harmless the Stockholder Representative from and against any Losses arising out of his service as Stockholder Representative, except to the extent arising from Fraud or Willful Breach by the Stockholder Representative.

(d) The Stockholder Representative Agreement shall be in substantially the form attached hereto as Exhibit C.

Section 3.9 — Rollover

(a) Notwithstanding anything in this Article III to the contrary, each of Nathan Aldridge and Sonia Reyes-Watkins (each, a "Rollover Participant") shall, in lieu of receiving a portion of the Per Share Merger Consideration otherwise payable to such Rollover Participant in respect of his or her shares of Company Common Stock, contribute such portion (in the amounts set forth below) to Harrowgate Velocity Co-Invest LP (the "Co-Invest Vehicle"), a Delaware limited partnership, in exchange for limited partnership interests in the Co-Invest Vehicle, all as more fully set forth in and subject to the terms and conditions of the Rollover Agreement:

(i) Nathan Aldridge: Fourteen Million Two Hundred Thousand Dollars ($14,200,000); and

(ii) Sonia Reyes-Watkins: Nine Million Seven Hundred Thousand Dollars ($9,700,000).

The aggregate amount contributed to the Co-Invest Vehicle by the Rollover Participants shall be Twenty-Three Million Nine Hundred Thousand Dollars ($23,900,000) (the "Total Rollover Amount").

(b) The Rollover Agreement shall be in substantially the form attached hereto as Exhibit D. The limited partnership interests received by each Rollover Participant in the Co-Invest Vehicle shall be subject to the terms and conditions of the limited partnership agreement of the Co-Invest Vehicle, including customary transfer restrictions, tag-along and drag-along rights, and other provisions applicable to co-investment vehicles of Harrowgate Capital Management IV LLC.

(c) For the avoidance of doubt, the Rollover Participants shall remain entitled to receive the Per Share Merger Consideration with respect to the shares of Company Common Stock held by them that are not subject to the Rollover Agreement, subject to the pro rata reduction for the Escrow Amount as set forth in Section 3.7(a). The Rollover Participants shall receive their Per Share Merger Consideration (net of the Rollover amounts) in cash simultaneously with all other stockholders, and the contribution of the Rollover amounts to the Co-Invest Vehicle shall occur simultaneously with the Closing. The Rollover Agreement shall not condition the Rollover Participants' entitlement to the cash portion of their merger proceeds on any post-closing performance or

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY
AGREEMENT AND PLAN OF MERGER
among
HARROWGATE PRIVATE EQUITY FUND IV LP, a Delaware limited partnership,
HARROWGATE VELOCITY MERGER SUB INC., a Delaware corporation,
and
VELOPAY SYSTEMS, INC., a Delaware corporation
Dated as of [●], 2025
DRAFT — January 17, 2025 Calderwood & Harkness LLP Matter No. 1003-00003
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY
TABLE OF CONTENTS
Right-click to update Table of Contents
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — DRAFT FOR DISCUSSION PURPOSES ONLY
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered into as of [●], 2025, by and among Harrowgate Private Equity Fund IV LP, a Delaware limited partnership ("Parent"), Harrowgate Velocity Merger Sub Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent ("Merger Sub"), and VeloPay Systems, Inc., a Delaware corporation (the "Company"). Parent, Merger Sub, and the Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Parent is a Delaware limited partnership with its principal office at 300 King Street, Suite 4200, Wilmington, Delaware 19801. Parent's sole general partner is Harrowgate Capital Management IV LLC, a Delaware limited liability company ("Guarantor" or the "GP");
WHEREAS, Merger Sub is a Delaware corporation and a direct, wholly-owned subsidiary of Parent, formed solely for the purpose of effecting the Merger (as defined herein). Merger Sub was incorporated on [●] , Delaware File Number [●] , and its registered agent is Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801. Merger Sub has not engaged in any activities other than those incidental to its formation and the transactions contemplated by this Agreement. Merger Sub has no assets, liabilities, or operations other than those incident to its formation and the transactions contemplated hereby;
WHEREAS, the Company is a Delaware corporation with its principal office at 1455 Innovation Parkway, Suite 800, Austin, Texas 78759. The Company operates a cloud-based payments processing and merchant acquiring platform through its direct and indirect subsidiaries;
WHEREAS, the respective boards of directors (or equivalent governing bodies) of Parent, Merger Sub, and the Company have approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger and the other transactions contemplated hereby, upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company (the "Company Board") has (i) determined that this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, and (iii) resolved to recommend that the stockholders of the Company adopt this Agreement and approve the Merger on the terms and subject to the conditions set forth herein;
WHEREAS, it is intended that, for United States federal income tax purposes, the Merger shall be treated as a taxable acquisition of the Company's stock, and this Agreement is not intended to constitute a "plan of reorganization" within the meaning of Treasury Regulation Section 1.368-2(g);
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent's willingness to enter into this Agreement, certain stockholders of the Company (the "Support Stockholders") are entering into a Stockholder Support Agreement with Parent, dated as of the date hereof (the "Stockholder Support Agreement"), pursuant to which, among other things, such Support Stockholders have agreed to deliver written consents in favor of the adoption of this Agreement and approval of the Merger;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the Company's willingness to enter into this Agreement, Harrowgate Capital Management IV LLC is delivering a Limited Guarantee in favor of the Company (the "Limited Guarantee"), guaranteeing certain obligations of Parent hereunder, including the payment of the Reverse Termination Fee ; and
WHEREAS, the Merger is intended to be effected as a reverse triangular merger pursuant to Section 251 of the Delaware General Corporation Law (the "DGCL"), with the Company surviving the Merger as a wholly-owned subsidiary of Parent.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations, warranties, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings ascribed to them below:
"Acquisition Proposal" means any inquiry, proposal, indication of interest, or offer from any Person (other than Parent, Merger Sub, or any of their respective Affiliates) relating to any (a) direct or indirect acquisition (whether by purchase, merger, consolidation, business combination, recapitalization, share exchange, joint venture, or otherwise) of assets of the Company and its Subsidiaries constituting   or more of the consolidated assets of the Company and its Subsidiaries, or to which   or more of the consolidated revenues of the Company and its Subsidiaries are attributable, (b) direct or indirect acquisition (whether by purchase, tender offer, exchange offer, or otherwise) of   or more of any class of equity securities of the Company or any of its Subsidiaries, (c) merger, consolidation, business combination, recapitalization, liquidation, dissolution, or similar transaction involving the Company or any of its Subsidiaries, or (d) any combination of the foregoing transactions, in each case, other than the transactions contemplated by this Agreement.
"Action" means any claim, action, suit, arbitration, inquiry, examination, investigation, audit, or proceeding by or before any Governmental Authority.
"Adverse Recommendation Change" means the Company Board or any committee thereof (a) failing to include the Company Board Recommendation in the Information Statement, (b) withdrawing, qualifying, amending, or modifying, or publicly proposing to withdraw, qualify, amend, or modify, the Company Board Recommendation in a manner adverse to Parent, (c) approving, endorsing, or recommending, or publicly proposing to approve, endorse, or recommend, any Acquisition Proposal, or (d) resolving to take, or publicly announcing an intention to take, any of the actions described in clauses (a) through (c) above.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, as such terms are used in and construed under Rule 12b-2 under the Exchange Act.
"Aggregate Merger Consideration" means One Billion Nine Hundred Million Dollars ($1,900,000,000).
"Bankruptcy and Equity Exceptions" means the effect on enforceability of (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar Laws of general applicability relating to or affecting creditors' rights generally, and (b) general equitable principles (whether considered in a proceeding in equity or at law).
"Book-Entry Share" means a non-certificated share of Company Common Stock represented by book-entry.
"Business Day" means any day other than a Saturday, Sunday, or any day on which commercial banking institutions in New York, New York or Wilmington, Delaware are authorized or required by Law to close.
"Buyer Material Adverse Effect" means any event, change, effect, development, state of facts, condition, circumstance, or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Parent or Merger Sub to consummate the transactions contemplated hereby on a timely basis.
"Certificate" means a physical stock certificate representing one or more shares of Company Common Stock.
"Certificate of Merger" means the certificate of merger to be filed with the Secretary of State of the State of Delaware with respect to the Merger, in the form required by and executed in accordance with Section 251 of the DGCL.
"Closing" has the meaning set forth in Section 2.2.
"Closing Date" has the meaning set forth in Section 2.2.
"Co-Invest Vehicle" means Harrowgate Velocity Co-Invest LP, a Delaware limited partnership.
"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
"Company Board" means the Board of Directors of the Company.
"Company Board Recommendation" means the recommendation of the Company Board that the stockholders of the Company adopt this Agreement and approve the Merger.
"Company Common Stock" means the common stock, par value $0.001 per share, of the Company.
"Company Disclosure Schedules" means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement.
"Company Material Adverse Effect" has the meaning set forth in Section 4.1.
"Company Options" means outstanding options to purchase shares of Company Common Stock granted under the Company Stock Plans.
"Company RSUs" means outstanding restricted stock units relating to shares of Company Common Stock granted under the Company Stock Plans.
"Company Stock Plans" means, collectively, the VeloPay Systems, Inc. 2017 Equity Incentive Plan, the VeloPay Systems, Inc. 2021 Equity Incentive Plan, and any other equity compensation plan, agreement, or arrangement maintained by the Company or any of its Subsidiaries pursuant to which equity or equity-based awards have been or may be granted.
"Company Stockholder Approval" has the meaning set forth in Section 4.5.
"Company Warrants" means outstanding warrants to purchase shares of Company Common Stock.
"Confidentiality Agreement" means the Mutual Confidentiality and Non-Disclosure Agreement between Parent and the Company, dated October 14, 2024, as may be amended from time to time.
"Consent" means any consent, approval, waiver, authorization, order, permit, license, or clearance of or from, or notice, filing, registration, or declaration to, any Person or Governmental Authority.
"Contract" means any legally binding agreement, contract, lease, sublease, license, sublicense, instrument, note, bond, mortgage, indenture, commitment, undertaking, arrangement, or understanding (whether written or oral).
"Credit Agreement" means the credit agreement to be entered into in connection with the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter.
"D&O Indemnified Parties" has the meaning set forth in Section 7.5(a).
"D&O Tail Policy" has the meaning set forth in Section 7.5(b).
"DGCL" means the General Corporation Law of the State of Delaware, as amended from time to time.
"Debt Commitment Letter" means the commitment letter, dated as of [●] , 2025 (Reference: CRE-2025-SPF-[●] ), from Tralvendo National Bank and Prairie State Bank, N.A. to Parent, pursuant to which such financial institutions have committed, subject to the terms and conditions thereof, to provide the Debt Financing.
"Debt Financing" means the debt financing contemplated by the Debt Commitment Letter, consisting of (a) a senior secured term loan facility in an aggregate principal amount of Five Hundred Million Dollars ($500,000,000) and (b) a senior secured revolving credit facility in an aggregate principal amount of Two Hundred Sixty Million Dollars ($260,000,000), for a total committed amount of Seven Hundred Sixty Million Dollars ($760,000,000), which facilities are fully committed as of the date of the Debt Commitment Letter.
"Debt Financing Sources" means Tralvendo National Bank and Prairie State Bank, N.A., together with their respective Affiliates, officers, directors, employees, agents, and representatives, and their respective successors and assigns.
"Deductible" has the meaning set forth in Section 10.4(b).
"Dissenting Shares" has the meaning set forth in Section 3.5(a).
"Effective Time" has the meaning set forth in Section 2.3.
"Environmental Law" means any Law relating to pollution, protection of the environment or natural resources, or exposure of any Person to Hazardous Substances, including the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, and their state and local counterparts.
"Equity Commitment Letter" means the equity commitment letter, dated as of the date hereof, from Harrowgate Capital Management IV LLC to Parent, pursuant to which Harrowgate Capital Management IV LLC has committed to contribute or cause to be contributed equity financing in an aggregate amount of One Billion One Hundred Forty Million Dollars ($1,140,000,000) to Parent.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Escrow Agent" means Garrison Trust Company, with its principal office at One Liberty Plaza, 42nd Floor, New York, New York 10006 (Contact: Valerie Drummond; Reference: GT-ESC-2025-[●]).
"Escrow Agreement" means the Escrow Agreement to be entered into at the Closing among the Surviving Corporation (on behalf of Parent), the Stockholder Representative, and the Escrow Agent, in substantially the form attached hereto as Exhibit B.
"Escrow Amount" means   of the Aggregate Merger Consideration.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Fund" has the meaning set forth in Section 3.6(b).
"FCPA" means the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
"FIRPTA" means the Foreign Investment in Real Property Tax Act, as amended, including the provisions of Sections 897 and 1445 of the Code and the Treasury Regulations promulgated thereunder.
"Financing Sources" means the entities that have committed to provide or arrange or otherwise entered into agreements in connection with the Debt Financing, including the parties to the Debt Commitment Letter, any joinder agreements, credit agreements, loan agreements, or indentures, together with their respective Affiliates and their respective officers, directors, employees, agents, and representatives, and their respective successors and assigns.
"Fraud" means actual and intentional common law fraud (as opposed to constructive fraud, negligent misrepresentation, or other fraud-based claim based on recklessness or negligence) with respect to the making of a representation or warranty set forth in this Agreement.
"Fully Diluted Shares" means ninety-five million (95,000,000) shares, comprising (a) 82,400,000 shares of Company Common Stock issued and outstanding as of the date hereof, (b) 7,600,000 shares of Company Common Stock subject to outstanding Company Options, (c) 3,200,000 shares of Company Common Stock subject to outstanding Company RSUs, and (d) 1,800,000 shares of Company Common Stock subject to outstanding Company Warrants.
"Fundamental Representations" means the representations and warranties of the Company set forth in Section 4.1 (Organization, Good Standing, and Qualification), Section 4.3 (Capitalization), Section 4.4 (Authority; Due Authorization), Section 4.5 (Company Stockholder Approval), and Section 4.21 (Brokers and Finders), and the representations and warranties of Parent and Merger Sub set forth in Section 5.1 (Organization, Good Standing, and Qualification), Section 5.2 (Authority; Due Authorization), Section 5.5 (Merger Sub Activities), and Section 5.8 (Brokers and Finders).
"GAAP" means generally accepted accounting principles in the United States, as in effect from time to time, consistently applied.
"Governmental Authority" means any federal, state, local, municipal, or foreign government or governmental, regulatory, or administrative authority, instrumentality, agency, body, bureau, or commission, or any court, tribunal, or judicial or arbitral body of competent jurisdiction, including the United States Securities and Exchange Commission, the United States Department of Justice, the United States Federal Trade Commission, and the United States Internal Revenue Service.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"Hazardous Substances" means any chemical, material, substance, waste, pollutant, or contaminant that is listed, defined, or regulated as "hazardous," "toxic," or words of similar import under any Environmental Law.
"Indemnification Cap" means   of the Aggregate Merger Consideration.
"Information Statement" means the information statement to be prepared and mailed by the Company to its stockholders in accordance with Section 228(e) of the DGCL and applicable regulations under the Exchange Act, together with any amendments or supplements thereto.
"intellectual Property" means all intellectual property and proprietary rights of every kind and nature, including all (a) patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (b) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) copyrights, works of authorship, and all applications, registrations, and renewals in connection therewith, (d) trade secrets, know-how, inventions, processes, techniques, algorithms, software (including source code and object code), data, databases, and compilations of data, (e) domain names and uniform resource locators, and (f) all other proprietary rights.
"Investment Canada Act" means the Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.), as amended, and the regulations promulgated thereunder.
"IRS" means the United States Internal Revenue Service.
"Knowledge" means, with respect to the Company, the actual knowledge of Nathan Aldridge (Chief Executive Officer), Sonia Reyes-Watkins (Chief Operating Officer), Marcus Langford (Chief Financial Officer), and Danielle Moreau (General Counsel), in each case, after   With respect to Parent, "Knowledge" means the actual knowledge of Priya Deshmukh and Thomas Harrowgate, in each case, after  
"Law" means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, order, decree, directive, guideline, or policy of any Governmental Authority having the force or effect of law.
"Letter of Transmittal" has the meaning set forth in Section 3.6(c).
"Lien" means any lien, pledge, hypothecation, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any stockholder or similar agreement, or encumbrance of any kind.
"Limited Guarantee" means the Limited Guarantee, dated as of the date hereof, delivered by Harrowgate Capital Management IV LLC in favor of the Company, in substantially the form attached hereto as Exhibit H.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees and expenses of investigation and defense), but excluding punitive damages (except to the extent actually paid to a third party in connection with a third-party claim) and consequential damages (except to the extent reasonably foreseeable).
"Material Contract" has the meaning set forth in Section 4.14.
"Merger" means the merger of Merger Sub with and into the Company, with the Company surviving such merger as a wholly-owned subsidiary of Parent, pursuant to this Agreement and in accordance with Section 251 of the DGCL.
"Merger Consideration" means the aggregate cash payable pursuant to Article III in respect of the shares of Company Common Stock, Company Options, Company RSUs, and Company Warrants, as applicable.
"Notice Period" has the meaning set forth in Section 7.3(f).
"Option Spread Payment" has the meaning set forth in Section 3.2(a).
"Outside Date" means the date that is nine (9) months following the date of this Agreement; provided, however, that if on the initial Outside Date any of the conditions set forth in Section 8.1(a), Section 8.1(e), or Section 8.1(f) have not been satisfied (or waived) but all other conditions set forth in Article VIII have been satisfied or waived (or are capable of being satisfied at the Closing), then the Outside Date shall automatically be extended to a date that is three (3) months after the initial Outside Date (the "Extended Outside Date"); provided, further, that the party seeking to rely on such extension is not then in material breach of this Agreement.
"Paying Agent" means Keystone Pacific Transfer Services Inc., or such other paying agent as may be appointed by Parent with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned, or delayed).
"Paying Agent Agreement" means the paying agent agreement to be entered into by and among Parent (or the Surviving Corporation), the Paying Agent, and the Stockholder Representative, in substantially the form attached hereto as Exhibit K.
"Per Share Merger Consideration" means Twenty Dollars ($20.00) per share in cash, without interest and subject to any applicable withholding of Taxes.
"Permitted Liens" means (a) mechanics', carriers', workmen's, repairmen's, warehousemen's, and other similar Liens arising or incurred in the ordinary course of business, (b) Liens for Taxes and other governmental charges and assessments that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (c) Liens arising under workers' compensation, unemployment insurance, social security, or similar legislation, (d) easements, covenants, conditions, restrictions, and other similar matters affecting title to real property that do not materially impair the use thereof for the purposes for which they are held, (e) statutory landlord's liens and Liens granted to landlords under any lease or sublease, (f) Liens that will be released at or prior to the Closing, and (g) Liens arising in the ordinary course of business that, individually or in the aggregate, do not materially detract from the value of, or materially impair the use of, the property subject thereto.
"Person" means any individual, corporation, partnership (general or limited), limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or any other entity.
"Pre-Closing Taxes" means all Taxes of the Company and its Subsidiaries for any taxable period ending on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, determined in accordance with Section 10.2.
"R&W Insurance Policy" means the buyer-side representations and warranties insurance policy to be obtained by Parent, with a policy limit of One Hundred Ninety Million Dollars ($190,000,000) and a retention of Nineteen Million Dollars ($19,000,000), as more fully described in Section 5.9.
"Representatives" means, with respect to any Person, such Person's officers, directors, managers, employees, agents, and advisors (including attorneys, accountants, consultants, investment bankers, and financial advisors).
"Reverse Termination Fee" means   of the Aggregate Merger Consideration.
"Rollover Agreement" means the Rollover Agreement to be entered into by and among Parent, the Co-Invest Vehicle, and the Rollover Participants, in substantially the form attached hereto as Exhibit D.
"Rollover Participant" has the meaning set forth in Section 3.9(a).
"SEC" means the United States Securities and Exchange Commission.
"Seller Retention Amount" means Nine Million Five Hundred Thousand Dollars ($9,500,000), representing the portion of the R&W Insurance Policy retention to be borne by the Company's former stockholders.
"Solvent" means, with respect to any Person as of any date of determination, that as of such date (a) the sum of the assets (at a fair valuation) of such Person and its Subsidiaries, on a consolidated basis, exceeds the sum of all liabilities (including contingent and unliquidated liabilities) of such Person and its Subsidiaries, on a consolidated basis, (b) such Person and its Subsidiaries, on a consolidated basis, have adequate capital with which to engage in their businesses as presently conducted, and (c) such Person and its Subsidiaries, on a consolidated basis, are able to pay their debts and obligations as they become due in the ordinary course of business.
"Stockholder Representative" means Nathan Aldridge, in his capacity as representative of the Company's former stockholders appointed pursuant to Section 3.8.
"Stockholder Representative Expense Fund" has the meaning set forth in Section 3.8(b).
"Stockholder Support Agreement" has the meaning set forth in the Recitals.
"Straddle Period" means any taxable period beginning on or before and ending after the Closing Date.
"Subsidiary" means, with respect to any Person, any corporation, limited liability company, partnership, joint venture, trust, or other legal entity of which such Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, limited liability company, partnership, joint venture, trust, or other legal entity. With respect to the Company, "Subsidiary" includes VeloPay Processing LLC, a Delaware limited liability company; VeloPay Canada Inc., an Ontario corporation; VeloPay Europe, Unipessoal Lda., a Portuguese limitada; VeloPay Fraud intelligence Inc., a Delaware corporation; and PayStream Gateway LLC, a Delaware limited liability company.
"Superior Proposal" has the meaning set forth in Section 7.3(e).
"Surviving Corporation" means the Company, as the surviving corporation in the Merger.
"Tax" or "Taxes" means all federal, state, local, and foreign income, profit, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp, payroll, sales, use, transfer, employment, unemployment, disability, value-added, alternative or add-on minimum, estimated, excise, real property, personal property (tangible and intangible), withholding, and other taxes, charges, fees, levies, or assessments of any kind whatsoever, together with all interest, penalties, fines, and additions to tax imposed with respect thereto.
"Tax Return" means any return, declaration, report, form, claim for refund, or information return or statement required to be filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto and including any amendment thereof.
"Termination Fee" means   of the Aggregate Merger Consideration.
"Transaction Documents" means this Agreement, the Stockholder Support Agreement, the Equity Commitment Letter, the Debt Commitment Letter, the Limited Guarantee, the Escrow Agreement, the Paying Agent Agreement, the Rollover Agreement, the Stockholder Representative Agreement, the Non-Competition and Non-Solicitation Agreements, and each other document or agreement contemplated hereby or thereby.
"Transaction Expenses" means all fees, costs, and expenses (including all fees and expenses of counsel, advisors, accountants, investment bankers, and other Representatives) incurred by the Parties in connection with the negotiation, preparation, execution, and performance of this Agreement and the consummation of the transactions contemplated hereby, estimated at approximately Forty-Eight Million Five Hundred Thousand Dollars ($48,500,000) in the aggregate (buyer and seller combined).
"Treasury Regulations" means the United States Treasury Regulations promulgated under the Code.
"Willful Breach" means a material breach of this Agreement that is a consequence of an intentional act or intentional failure to act by the breaching party with the knowledge that such act or failure to act would, or would reasonably be expected to, constitute a breach of this Agreement.
Section 1.2 — Interpretation
Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Exhibit," and "Schedule" refer to the specified Article, Section, Exhibit, or Schedule of or to this Agreement unless otherwise specified; (e) the word "including" and words of similar import when used in this Agreement shall mean "including, without limitation," unless the context otherwise requires or unless otherwise specified; (f) the word "or" shall not be exclusive; (g) the word "extent" in the phrase "to the extent" shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply "if"; (h) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation; (i) references to "days" shall mean calendar days unless otherwise specified; (j) references to "dollars" or "$" shall mean U.S. dollars; (k) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified as Business Days; (l) all Article, Section, Exhibit, and Schedule references are to the Articles, Sections, Exhibits, and Schedules of this Agreement unless otherwise specified; and (m) the headings and captions contained in this Agreement and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or 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.
ARTICLE II — THE MERGER
Section 2.1 — The Merger
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 251 of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the Surviving Corporation after the Merger and shall become a direct, wholly-owned subsidiary of Parent. The Merger shall have the effects set forth in the applicable provisions of the DGCL, including Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, powers, and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, and duties of the Company and Merger Sub shall become the debts, liabilities, and duties of the Surviving Corporation.
Section 2.2 — Closing
Subject to the terms and conditions of this Agreement, the closing of the Merger (the "Closing") shall take place at 10:00 a.m., Eastern time, on the   Business Day following the date on which the last of the conditions set forth in Article VIII has been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), at the offices of Calderwood & Harkness LLP, 787 Seventh Avenue, 38th Floor, New York, New York 10019, or by electronic exchange of documents and signatures (including by portable document format (.pdf) or other electronic transmission), or at such other time, date, or place as Parent and the Company may mutually agree in writing. The date on which the Closing actually occurs is referred to herein as the "Closing Date."
If the Closing shall not have occurred on or before the Outside Date (as such date may be extended in accordance with the terms hereof), this Agreement may be terminated in accordance with Article IX, subject to and in accordance with the provisions thereof.
Section 2.3 — Effective Time
On the Closing Date, the Parties shall cause a Certificate of Merger to be duly prepared, executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Section 251 of the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware (or at such later date and time as may be agreed by Parent and the Company in writing and specified in the Certificate of Merger in accordance with the DGCL) (the "Effective Time"). For purposes of such filing, the Delaware file number of the Company is 5748392, and the Delaware file number of Merger Sub is [●] .
Section 2.4 — Certificate of Incorporation of the Surviving Corporation
At the Effective Time, the certificate of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety to read as set forth in Exhibit A hereto (the "Amended and Restated Certificate of Incorporation"), and as so amended and restated shall be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with the DGCL and such certificate of incorporation; provided, however, that the provisions of the Amended and Restated Certificate of Incorporation relating to the indemnification, exculpation, and limitation of liability of the directors and officers of the Company immediately prior to the Effective Time shall not be amended, repealed, or otherwise modified in a manner that would adversely affect the rights thereunder of such Persons for a period of six (6) years following the Effective Time, unless such modification is required by applicable Law.
Section 2.5 — Bylaws of the Surviving Corporation
At the Effective Time, the bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in their entirety in a form mutually agreed by Parent and the Company no later than   Business Days prior to the Closing Date, and as so amended and restated shall be the bylaws of the Surviving Corporation until thereafter amended in accordance with the DGCL, the certificate of incorporation of the Surviving Corporation, and such bylaws.
Section 2.6 — Directors and Officers of the Surviving Corporation
(a) The directors of the Surviving Corporation from and after the Effective Time shall be the individuals designated by Parent in writing to the Company at least two (2) Business Days prior to the Closing Date. Such individuals shall hold office in accordance with the Amended and Restated Certificate of Incorporation and bylaws of the Surviving Corporation until the earlier of their respective resignations or removals or until their respective successors are duly elected or appointed and qualified, as the case may be.
(b) The officers of the Surviving Corporation from and after the Effective Time shall initially be the officers of the Company as of immediately prior to the Effective Time, each of whom shall hold office in accordance with the Amended and Restated Certificate of Incorporation and bylaws of the Surviving Corporation until the earlier of their respective resignations or removals or until their respective successors are duly elected or appointed and qualified, as the case may be; provided that Parent shall have the right to change or replace any officer of the Surviving Corporation after the Effective Time in accordance with the organizational documents of the Surviving Corporation; provided, further, that Nathan Aldridge and Sonia Reyes-Watkins shall continue as Chief Executive Officer and Chief Operating Officer, respectively, for a period of not less than twelve (12) months following the Closing Date, subject to the terms of their respective employment arrangements .
ARTICLE III — MERGER CONSIDERATION; CONVERSION OF SHARES; TREATMENT OF EQUITY AWARDS
Section 3.1 — Conversion of Shares
At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or any holder of any securities of the Company or Merger Sub:
(a) Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares and (ii) shares of Company Common Stock held in the treasury of the Company) shall be converted into the right to receive Twenty Dollars ($20.00) in cash, without interest and subject to any applicable withholding of Taxes (the "Per Share Merger Consideration"). All such shares of Company Common Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration to be paid in consideration therefor upon the surrender of such Certificate or Book-Entry Share in accordance with Section 3.6, without interest.
(b) Merger Sub Stock. Each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger, be converted into and become one (1) validly issued, fully paid, and non-assessable share of common stock of the Surviving Corporation. From and after the Effective Time, each stock certificate of Merger Sub evidencing ownership of any such shares shall evidence ownership of such shares of common stock of the Surviving Corporation.
(c) Treasury Shares. Each share of Company Common Stock held in the treasury of the Company or owned by any direct or indirect wholly-owned Subsidiary of the Company immediately prior to the Effective Time shall be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor or in respect thereof.
(d) Parent Stock. Each share of capital stock or other equity interest of Parent issued and outstanding immediately prior to the Effective Time shall remain unchanged and shall not be affected by the Merger.
Section 3.2 — Treatment of Company Options
(a) Vested Company Options. At the Effective Time, each Company Option that is outstanding and vested (or that has become exercisable) immediately prior to the Effective Time and that has a per share exercise price that is less than the Per Share Merger Consideration shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of (i) the excess, if any, of the Per Share Merger Consideration over the per share exercise price of such Company Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time (the "Option Spread Payment"), less applicable withholding Taxes required to be withheld with respect to such payment. For the avoidance of doubt, as of the date hereof, the weighted average exercise price of outstanding Company Options is $12.84 per share, resulting in an average net spread per option of $7.16. Each Company Option that has a per share exercise price that is equal to or greater than the Per Share Merger Consideration shall be cancelled for no consideration.
(b) Unvested Company Options. At the Effective Time, each Company Option that is outstanding and not vested immediately prior to the Effective Time shall be cancelled, and 
(c) The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company Options as set forth in this Section 3.2, including providing all required notices to holders and obtaining all required consents (or adopting any necessary amendments to the Company Stock Plans) to effectuate such treatment.
Section 3.3 — Treatment of Company RSUs
At the Effective Time, each Company RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of the Per Share Merger Consideration multiplied by the number of shares of Company Common Stock subject to such Company RSU, less applicable withholding Taxes required to be withheld with respect to such payment. Each Company RSU that is unvested immediately prior to the Effective Time shall, to the extent required, accelerate and become fully vested immediately prior to the Effective Time (and conditioned upon the occurrence of the Effective Time). For the avoidance of doubt, as of the date hereof, there are 3,200,000 Company RSUs outstanding, resulting in aggregate RSU payments of $64,000,000. The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company RSUs as set forth in this Section 3.3.
Section 3.4 — Treatment of Company Warrants
At the Effective Time, each Company Warrant that is outstanding immediately prior to the Effective Time and that has a per share exercise price that is less than the Per Share Merger Consideration shall be cancelled and converted into the right to receive, as soon as reasonably practicable after the Effective Time (and in any event within ten (10) Business Days thereof), an amount in cash (without interest) equal to the product of (i) the excess of the Per Share Merger Consideration over the per share exercise price of such Company Warrant, multiplied by (ii) the number of shares of Company Common Stock issuable upon exercise of such Company Warrant immediately prior to the Effective Time, less applicable withholding Taxes required to be withheld with respect to such payment. For the avoidance of doubt, as of the date hereof, there are 1,800,000 Company Warrants outstanding with a per share exercise price of $8.50, resulting in aggregate warrant payments of 1,800,000 multiplied by $11.50, equaling $20,700,000. Each Company Warrant that has a per share exercise price that is equal to or greater than the Per Share Merger Consideration shall be cancelled for no consideration. The Company shall take all actions that are necessary or appropriate to give effect to the treatment of the Company Warrants as set forth in this Section 3.4.
Section 3.5 — Dissenting Shares
(a) Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has properly demanded appraisal of such shares in accordance with Section 262 of the DGCL (the "Dissenting Shares") shall not be converted into the right to receive the Per Share Merger Consideration pursuant to Section 3.1(a), but instead such holder shall be entitled only to such rights as are granted by Section 262 of the DGCL with respect to such Dissenting Shares.
(b) If any holder of Dissenting Shares shall fail to perfect or shall have effectively withdrawn or otherwise lost the right to appraisal under Section 262 of the DGCL, then, as of the later of (i) the Effective Time and (ii) the occurrence of such event, such holder's shares shall automatically be deemed to have been converted as of the Effective Time into the right to receive the Per Share Merger Consideration, without interest thereon, upon surrender of the Certificate or Book-Entry Share representing such shares in accordance with Section 3.6, and such shares shall no longer be Dissenting Shares.
(c) The Company shall give prompt notice to Parent of any demands for appraisal received by the Company, any withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company in connection therewith. Parent shall have the right to participate in all negotiations and proceedings with respect to such demands, in consultation with the Stockholder Representative, and the Company shall not, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), voluntarily make any payment with respect to, or settle, offer to settle, or otherwise negotiate, any such demands for appraisal.
Section 3.6 — Paying Agent; Exchange Procedures
(a) Appointment of Paying Agent. Prior to the Effective Time, Parent shall appoint Keystone Pacific Transfer Services Inc. as paying agent (the "Paying Agent") for purposes of paying the Per Share Merger Consideration to the former holders of Company Common Stock. Parent shall enter into a Paying Agent Agreement with the Paying Agent in substantially the form attached hereto as Exhibit K, which agreement shall be in form and substance reasonably acceptable to Parent and the Company.
(b) Exchange Fund. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, cash in an aggregate amount sufficient to pay the Per Share Merger Consideration in respect of all shares of Company Common Stock converted into the right to receive the Per Share Merger Consideration pursuant to Section 3.1(a) (net of the Escrow Amount and any Rollover amounts) (such aggregate cash amount being referred to herein as the "Exchange Fund"). The Exchange Fund shall not be used for any purpose other than the payment of the Per Share Merger Consideration to the former holders of Company Common Stock as provided herein.
(c) Letter of Transmittal. As promptly as practicable after the Effective Time (and in any event within   Business Days thereof), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of Company Common Stock (i) a letter of transmittal (the "Letter of Transmittal") in substantially the form attached hereto as Exhibit I, which letter of transmittal shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book-Entry Shares to the Paying Agent, and shall be in customary form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions for use in effecting the surrender of Certificates or Book-Entry Shares in exchange for the Per Share Merger Consideration.
(d) Exchange Procedures. Upon (i) surrender to the Paying Agent of a Certificate (or an affidavit of loss in lieu thereof, together with an indemnity bond if required pursuant to Section 3.6(g)), together with a duly completed and validly executed Letter of Transmittal and such other documents as may be reasonably required by the Paying Agent, or (ii) receipt of an "agent's message" by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Per Share Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Book-Entry Share, less any amounts required to be withheld pursuant to Section 3.6(h). The Certificate so surrendered shall forthwith be cancelled. No interest shall be paid or accrued for the benefit of the holders of Certificates or Book-Entry Shares on the Per Share Merger Consideration payable upon the surrender of such Certificates or Book-Entry Shares.
(e) No Further Ownership Rights. From and after the Effective Time, (i) there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of shares of Company Common Stock that were outstanding immediately prior to the Effective Time, (ii) all shares of Company Common Stock outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be deemed to have been converted into the right to receive the Per Share Merger Consideration, and (iii) the holders of Certificates or Book-Entry Shares shall cease to have any rights with respect to Company Common Stock other than the right to receive the Per Share Merger Consideration (or, with respect to Dissenting Shares, the rights set forth in Section 3.5). If, at any time after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this Article III.
(f) Unclaimed Funds. Any portion of the Exchange Fund that remains undistributed to the holders of Company Common Stock as of the date that is   months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any former holders of Company Common Stock who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for payment of the Per Share Merger Consideration to which they are entitled. Any amounts remaining unclaimed by former holders of Company Common Stock immediately prior to the time at which such amounts would otherwise escheat to, or become the property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(g) Lost, Stolen, or Destroyed Certificates. In the event any Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, or destroyed and, if required by the Surviving Corporation or the Paying Agent, the posting by such Person of a bond in such reasonable amount as the Surviving Corporation or the Paying Agent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall deliver in exchange for such lost, stolen, or destroyed Certificate the applicable Per Share Merger Consideration.
(h) Withholding. Each of Parent, the Surviving Corporation, the Paying Agent, and any of their respective Affiliates shall be entitled to deduct and withhold from any consideration otherwise payable to any Person pursuant to this Article III such amounts as may be required to be deducted and withheld under the Code, or any provision of applicable state, local, or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section 3.7 — Escrow Arrangements
(a) At the Closing, Parent shall deposit (or cause to be deposited) the Escrow Amount of   with the Escrow Agent pursuant to the Escrow Agreement. The Escrow Amount shall be withheld on a pro rata basis from the Per Share Merger Consideration otherwise payable to the Company's stockholders (including the Rollover Participants, with respect to the cash portion of their consideration) in accordance with their relative pro rata share of the Aggregate Merger Consideration.
(b) The Escrow Amount shall serve as security for the indemnification obligations of the Company's former stockholders under Article X and shall be the primary source of recovery for indemnification claims by Parent and the Surviving Corporation under Section 10.2, subject to and in accordance with the terms and conditions of the Escrow Agreement and Article X.
(c) The Escrow Amount shall be released as follows:
(i) On the   of the Closing Date, an amount equal to   of the Escrow Amount   less the aggregate amount of any pending or unresolved indemnification claims that have been properly noticed to the Stockholder Representative and the Escrow Agent prior to such date and that remain outstanding as of such date (such withheld amounts, the "First Release Holdback Amount"), shall be released by the Escrow Agent to the Stockholder Representative for distribution to the Company's former stockholders in accordance with their pro rata interests.
(ii) On the   the Closing Date, the remaining balance of the Escrow Amount (including any First Release Holdback Amount to the extent that the related claims have been finally resolved without payment), less the aggregate amount of any pending or unresolved indemnification claims that have been properly noticed to the Stockholder Representative and the Escrow Agent prior to such date and that remain outstanding as of such date, shall be released by the Escrow Agent to the Stockholder Representative for distribution to the Company's former stockholders in accordance with their pro rata interests.
(iii) Any amounts retained by the Escrow Agent after the   of the Closing Date in respect of pending or unresolved indemnification claims shall be released promptly upon the final resolution of such claims, with any remaining balance distributed to the Stockholder Representative for the benefit of the former stockholders.
(d) The Escrow Agreement shall be in substantially the form attached hereto as Exhibit B. The Escrow Agent shall be Garrison Trust Company, One Liberty Plaza, 42nd Floor, New York, New York 10006 (Contact: Valerie Drummond; Reference: GT-ESC-2025-[●]).
Section 3.8 — Stockholder Representative
(a) Each holder of Company Common Stock, Company Options, Company RSUs, and Company Warrants, by virtue of receiving the Per Share Merger Consideration or other amounts payable hereunder, shall be deemed to have irrevocably constituted and appointed Nathan Aldridge as the Stockholder Representative, and as the true and lawful agent and attorney-in-fact of each such holder, with full power of substitution, to act on behalf of such holder in connection with the administration and resolution of all matters arising under or in connection with Articles IX and X, including all matters relating to indemnification claims, escrow administration, post-closing purchase price adjustments (if any), and post-closing dispute resolution.
(b) The Stockholder Representative shall have the authority and power to (i) negotiate, resolve, settle, and compromise any and all indemnification claims under Article X, (ii) execute and deliver all documents and instruments on behalf of the former stockholders in connection with the Escrow Agreement, (iii) engage counsel, accountants, and other advisors, and (iv) take all actions and make all decisions as the Stockholder Representative may deem necessary or appropriate in connection with the foregoing. The decision, act, consent, or instruction of the Stockholder Representative shall constitute a decision of all former stockholders and shall be final, binding, and conclusive upon each such former stockholder. The Stockholder Representative shall be entitled to reimbursement of all reasonable out-of-pocket costs and expenses incurred in connection with the performance of his duties hereunder, which costs and expenses shall be paid from a Stockholder Representative Expense Fund of   (the "Stockholder Representative Expense Fund") to be withheld from the Aggregate Merger Consideration at the Closing and held in a separate account for such purpose.
(c) The Stockholder Representative shall not be liable for any act or omission taken in good faith and reasonably believed by the Stockholder Representative to be authorized and within the scope of his authority. The former stockholders shall indemnify, defend, and hold harmless the Stockholder Representative from and against any Losses arising out of his service as Stockholder Representative, except to the extent arising from Fraud or Willful Breach by the Stockholder Representative.
(d) The Stockholder Representative Agreement shall be in substantially the form attached hereto as Exhibit C.
Section 3.9 — Rollover
(a) Notwithstanding anything in this Article III to the contrary, each of Nathan Aldridge and Sonia Reyes-Watkins (each, a "Rollover Participant") shall, in lieu of receiving a portion of the Per Share Merger Consideration otherwise payable to such Rollover Participant in respect of his or her shares of Company Common Stock, contribute such portion (in the amounts set forth below) to Harrowgate Velocity Co-Invest LP (the "Co-Invest Vehicle"), a Delaware limited partnership, in exchange for limited partnership interests in the Co-Invest Vehicle, all as more fully set forth in and subject to the terms and conditions of the Rollover Agreement:
(i) Nathan Aldridge: Fourteen Million Two Hundred Thousand Dollars ($14,200,000); and
(ii) Sonia Reyes-Watkins: Nine Million Seven Hundred Thousand Dollars ($9,700,000).
The aggregate amount contributed to the Co-Invest Vehicle by the Rollover Participants shall be Twenty-Three Million Nine Hundred Thousand Dollars ($23,900,000) (the "Total Rollover Amount").
(b) The Rollover Agreement shall be in substantially the form attached hereto as Exhibit D. The limited partnership interests received by each Rollover Participant in the Co-Invest Vehicle shall be subject to the terms and conditions of the limited partnership agreement of the Co-Invest Vehicle, including customary transfer restrictions, tag-along and drag-along rights, and other provisions applicable to co-investment vehicles of Harrowgate Capital Management IV LLC.
(c) For the avoidance of doubt, the Rollover Participants shall remain entitled to receive the Per Share Merger Consideration with respect to the shares of Company Common Stock held by them that are not subject to the Rollover Agreement, subject to the pro rata reduction for the Escrow Amount as set forth in Section 3.7(a). The Rollover Participants shall receive their Per Share Merger Consideration (net of the Rollover amounts) in cash simultaneously with all other stockholders, and the contribution of the Rollover amounts to the Co-Invest Vehicle shall occur simultaneously with the Closing. The Rollover Agreement shall not condition the Rollover Participants' entitlement to the cash portion of their merger proceeds on any post-closing performance or

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AGREEMENT AND PLAN OF MERGER

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