WRITTEN CONSENT OF THE SOLE STOCKHOLDER
OF
PINNACLE MERGER SUB, INC.
(a Delaware corporation)
Action by Written Consent in Lieu of a Special Meeting of Stockholders Pursuant to Section 228 of the Delaware General Corporation Law
Effective as of April 7, 2025
The undersigned, Harrowgate Private Equity Fund IV LP, a Delaware limited partnership ("HPE Fund IV" or the "Sole Stockholder"), being the sole stockholder of Pinnacle Merger Sub, Inc., a Delaware corporation (the "Corporation" or "Merger Sub"), holding all of the issued and outstanding shares of capital stock of the Corporation, hereby executes this Written Consent of the Sole Stockholder (this "Written Consent") in lieu of a special meeting of stockholders of the Corporation, pursuant to Section 228 of the General Corporation Law of the State of Delaware (as amended from time to time, the "DGCL").
The Corporation's employer identification number is 93-4081562. The Corporation's registered office in the State of Delaware is located at 1200 Market Street, Suite 3100, Wilmington, Delaware 19801.
Section 228 of the DGCL provides that any action required or permitted to be taken at any annual or special meeting of stockholders of a Delaware corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holder or holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. The Certificate of Incorporation and Bylaws of the Corporation do not restrict or prohibit action by written consent in lieu of a meeting.
The undersigned, being the holder of one hundred percent (100%) of the issued and outstanding shares of capital stock of the Corporation, and therefore possessing all voting power necessary to authorize or take any action that may be submitted to a vote of the stockholders of the Corporation, hereby adopts the following recitals and resolutions by written consent, effective as of April 7, 2025, with the same force and effect as if such resolutions had been duly adopted at a special meeting of the stockholders of the Corporation duly called and held on such date at which all shares of capital stock of the Corporation entitled to vote were present and voted.
RECITALS
WHEREAS, the Corporation was incorporated in the State of Delaware on March 18, 2025, as a wholly owned subsidiary of HPE Fund IV, for the sole purpose of effecting a merger with Pennfield Holdings, Inc., a Delaware corporation ("Pennfield" or the "Company"), whose common stock, par value $0.001 per share, is listed on the Nasdaq Global Select Market under the ticker symbol "PNFD" (CUSIP No. 708234109), and the Corporation was formed as a direct, wholly owned subsidiary of HPE Fund IV solely for such purpose and has not conducted any business or operations other than those incidental to its formation and the transactions described herein, with Jonah Whitfield, Principal of Harrowgate Capital Partners LLC, serving as the sole incorporator of the Corporation;
WHEREAS, HPE Fund IV, the Corporation, and Pennfield have entered into that certain Agreement and Plan of Merger, dated as of April 7, 2025 (as the same may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Harrowgate Private Equity Fund IV LP, Pinnacle Merger Sub, Inc., and Pennfield Holdings, Inc., pursuant to which, and subject to the terms and conditions set forth therein, the Corporation will be merged with and into Pennfield in a reverse triangular merger effected pursuant to Section 251 of the DGCL (the "Merger"), with Pennfield continuing as the surviving corporation of the Merger (the "Surviving Corporation") and becoming an indirect wholly owned subsidiary of HPE Fund IV, and whereby the aggregate merger consideration to be paid in connection with the Merger shall be Nine Hundred Eighty Million Dollars ($980,000,000), payable to the holders of Pennfield common stock at a price of Fifteen Dollars and Ninety-Five Cents ($15.95) per share on a fully diluted basis (based on 61,450,000 fully diluted shares, consisting of 58,200,000 outstanding shares of Pennfield common stock and 3,250,000 shares of Pennfield common stock underlying outstanding stock options and restricted stock units), all on the terms and subject to the conditions set forth more fully in the Merger Agreement, a copy of which has been made available to, reviewed by, and is on file with the Sole Stockholder;
WHEREAS, the Board of Directors of the Corporation, consisting of Jonah Whitfield as sole director (the "Board"), has duly adopted resolutions (i) determining that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, advisable, and in the best interests of the Corporation and its sole stockholder, (ii) approving and declaring advisable the Merger Agreement, the Merger, and the other transactions contemplated by the Merger Agreement, (iii) directing that the Merger Agreement and the Merger be submitted to the sole stockholder of the Corporation for its approval and adoption, and (iv) recommending that the sole stockholder of the Corporation approve and adopt the Merger Agreement and approve the Merger;
WHEREAS, Section 251 of the DGCL requires that the agreement of merger be adopted by the stockholders of each constituent corporation that is a party to the merger, and such adoption requires the affirmative vote or written consent of the holders of a majority of the outstanding shares of stock of each constituent corporation entitled to vote thereon, unless the certificate of incorporation of such corporation requires a greater vote;
WHEREAS, Section 228 of the DGCL permits any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation to be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and accordingly, HPE Fund IV, as the sole holder of all of the issued and outstanding shares of capital stock of the Corporation, possesses full power and authority to approve and adopt the Merger Agreement and approve the Merger by written consent in lieu of a meeting, without prior notice and without a separate vote of the stockholders;
WHEREAS, in connection with the Merger Agreement and the transactions contemplated thereby, the following agreements and instruments have been or will be executed, delivered, and performed by the applicable parties thereto (collectively, the "Ancillary Agreements"):
(a) that certain Equity Commitment Letter, dated as of March 27, 2025 (the "Equity Commitment Letter"), from HPE Fund IV to the Corporation, pursuant to which HPE Fund IV has committed to contribute Three Hundred Forty Million Dollars ($340,000,000) in equity capital to the Corporation to fund, in part, the aggregate merger consideration and related fees and expenses in connection with the Merger;
(b) that certain Limited Guarantee, dated as of April 7, 2025 (the "Limited Guarantee"), executed by HPE Fund IV in favor of Pennfield Holdings, Inc., guaranteeing certain payment obligations of the Corporation under the Merger Agreement, including, without limitation, the reverse termination fee in the amount of Fifty-Eight Million Eight Hundred Thousand Dollars ($58,800,000) payable by the Corporation to Pennfield under the circumstances specified in the Merger Agreement;
(c) that certain Co-Investment Agreement, dated as of March 27, 2025 (the "Co-Investment Agreement"), by and between HPE Fund IV and Ashford Growth Partners LP, a Delaware limited partnership, pursuant to which Ashford Growth Partners LP has committed to co-invest Sixty Million Dollars ($60,000,000) in equity capital alongside HPE Fund IV in connection with the Merger;
(d) those certain Voting and Support Agreements, each dated as of April 7, 2025 (collectively, the "Voting and Support Agreements"), by and among HPE Fund IV, the Corporation, and each of Catherine Langford, Derek Simmons, and Maxwell Dunn (each, a "Management Rollover Participant"), pursuant to which such Management Rollover Participants have agreed, among other things, to vote their respective shares of Pennfield common stock in favor of the adoption of the Merger Agreement and the approval of the Merger;
(e) that certain Rollover Agreement, dated as of April 7, 2025 (the "Rollover Agreement"), by and among HPE Fund IV, the Corporation, and the Management Rollover Participants, providing for the rollover of Twenty-One Million Five Hundred Thousand Dollars ($21,500,000) in aggregate equity value held by the Management Rollover Participants into equity of a parent entity of the Surviving Corporation in lieu of receiving cash merger consideration;
(f) that certain Escrow Agreement, dated as of April 7, 2025 (the "Escrow Agreement"), by and among HPE Fund IV, the Corporation, Pennfield Holdings, Inc., and Grandview Trust Company, N.A., a national banking association, as escrow agent, establishing an escrow fund in the amount of Thirty-Four Million Three Hundred Thousand Dollars ($34,300,000) to secure the payment of the termination fee and certain other obligations under the Merger Agreement; and
(g) that certain Debt Commitment Letter, dated as of March 24, 2025 (the "Debt Commitment Letter"), from Falconer National Bank, N.A. and Dunmore Capital Markets LLC to the Corporation, providing commitments for (i) a Four Hundred Ninety Million Dollar ($490,000,000) Senior Secured Term Loan B Facility and (ii) a One Hundred Fifty Million Dollar ($150,000,000) Senior Secured Revolving Credit Facility, for total committed debt financing of Six Hundred Forty Million Dollars ($640,000,000), in each case on the terms and subject to the conditions set forth therein;
NOW, THEREFORE, the undersigned Sole Stockholder, being the holder of all of the issued and outstanding shares of capital stock of the Corporation and having full power and authority to take any and all actions that may be submitted to a vote of the stockholders of the Corporation, hereby adopts the following resolutions by written consent:
RESOLUTIONS
RESOLVED, that the Merger Agreement, substantially in the form presented to the Sole Stockholder (a copy of which has been made available to, reviewed by, and is on file with the Sole Stockholder), including all exhibits, schedules, annexes, and disclosure schedules attached thereto, and all of the transactions contemplated thereby, including, without limitation, the Merger and the payment of the aggregate merger consideration of Nine Hundred Eighty Million Dollars ($980,000,000) to the holders of Pennfield common stock, are hereby approved and adopted in all respects, with the same force and effect as if the Merger Agreement had been approved and adopted by the affirmative vote of the holders of all outstanding shares of capital stock of the Corporation at a duly convened special meeting of the stockholders of the Corporation.
RESOLVED FURTHER, that the merger of the Corporation with and into Pennfield Holdings, Inc., a Delaware corporation, with Pennfield Holdings, Inc. surviving the Merger as the Surviving Corporation and continuing its corporate existence under the laws of the State of Delaware as an indirect wholly owned subsidiary of HPE Fund IV, pursuant to and on the terms and conditions set forth in the Merger Agreement and in accordance with Section 251 of the DGCL, is hereby approved in all respects.
RESOLVED FURTHER, that the preparation, execution, and filing of a Certificate of Merger with the Secretary of State of the State of Delaware, in substantially the form required by Section 251(c) of the DGCL and as contemplated by the Merger Agreement, together with all other certificates, documents, instruments, and filings required to be filed in connection with the Merger with the Secretary of State of the State of Delaware or with any other governmental authority, are hereby approved in all respects, and that the officers and authorized representatives of the Corporation are hereby authorized and directed, in the name and on behalf of the Corporation, to execute, deliver, and file the Certificate of Merger and such other certificates, documents, instruments, and filings with the Secretary of State of the State of Delaware and with any other applicable governmental authority as may be necessary, advisable, or appropriate to effect and consummate the Merger in accordance with the Merger Agreement and the DGCL.
RESOLVED FURTHER, that the execution, delivery, and performance by the Corporation of each of the Ancillary Agreements to which the Corporation is or will become a party, and the consummation by the Corporation of the transactions contemplated by each such Ancillary Agreement, including, without limitation, the Equity Commitment Letter, the Limited Guarantee, the Co-Investment Agreement, the Voting and Support Agreements, the Rollover Agreement, the Escrow Agreement, and the Debt Commitment Letter, are hereby approved and ratified in all respects.
RESOLVED FURTHER, that Jonah Whitfield, as sole director and as any officer of the Corporation that he may hold or hereafter be appointed to, and each other person authorized by the Board of Directors of the Corporation from time to time (each, an "Authorized Person"), are hereby authorized and empowered, acting individually or together, in the name and on behalf of the Corporation, to:
(a) execute, deliver, and perform the Merger Agreement, the Certificate of Merger, and each Ancillary Agreement to which the Corporation is or will become a party, including any amendments, modifications, supplements, waivers, or consents thereto, as any such Authorized Person may approve, such approval to be conclusively evidenced by the execution and delivery thereof by such Authorized Person;
(b) execute and deliver any and all certificates, instruments, agreements, documents, notices, consents, filings, and other papers as may be necessary, advisable, or appropriate to carry out the intent and purposes of the foregoing resolutions and to consummate the Merger and the other transactions contemplated by the Merger Agreement and the Ancillary Agreements, including, without limitation, all documents, instruments, and filings required in connection with any applicable pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), filings with the Securities and Exchange Commission (the "SEC"), filings with the Nasdaq Stock Market LLC, and filings with any other applicable federal, state, local, or foreign governmental authority; and
(c) pay all fees, costs, expenses, taxes, and other amounts incurred or to be incurred in connection with the foregoing, including, without limitation, the HSR Act filing fee of Two Hundred Eighty Thousand Dollars ($280,000), all other regulatory filing fees, legal fees and expenses of counsel to the Corporation and HPE Fund IV, advisory fees, accounting fees, transfer agent fees, printing and mailing costs, and all other transaction-related fees and expenses;
in each case, as any such Authorized Person may deem necessary, advisable, or appropriate, in such Authorized Person's sole discretion, such determination to be conclusively evidenced by the execution, delivery, or performance of any such document, instrument, certificate, filing, or payment by such Authorized Person.
RESOLVED FURTHER, that all actions heretofore taken by the sole director, any officer, and any authorized representative of the Corporation in connection with or in furtherance of (a) the incorporation, formation, and organization of the Corporation, (b) the negotiation, preparation, execution, and delivery of the Merger Agreement and the Ancillary Agreements, (c) the preparation and filing of any applications, notices, certificates, or other documents with any governmental authority or third party in connection with the Merger or the other transactions contemplated by the Merger Agreement and the Ancillary Agreements, and (d) any and all other actions taken in connection with or incidental to the foregoing, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Corporation.
RESOLVED FURTHER, that the officers and Authorized Persons of the Corporation are hereby authorized and empowered, acting individually or together, in the name and on behalf of the Corporation, to take any and all further actions, execute and deliver any and all further instruments, documents, certificates, notices, consents, agreements, and filings, and make any and all filings with governmental authorities (including, without limitation, the SEC, the Secretary of State of the State of Delaware, the Nasdaq Stock Market LLC, the United States Department of Justice, the Federal Trade Commission, and any other applicable federal, state, local, or foreign governmental body, agency, commission, or authority) as they may deem necessary, advisable, or appropriate to carry out the intent and purposes of the foregoing resolutions and to fully effectuate and consummate the Merger and the other transactions contemplated by the Merger Agreement and the Ancillary Agreements, the approval of such actions to be conclusively evidenced by the taking of such actions by any such officer or Authorized Person.
GENERAL PROVISIONS
Effectiveness. This Written Consent shall be effective as of April 7, 2025. This Written Consent may be executed in one or more counterparts (including by means of facsimile or portable document format (.pdf) transmitted by electronic mail), each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Written Consent by facsimile or electronic transmission (including in .pdf format) shall be effective as delivery of a manually executed counterpart of this Written Consent.
Action Without Meeting; No Prior Notice. This Written Consent constitutes the consent of the Sole Stockholder given in lieu of a meeting of the stockholders of the Corporation, in accordance with Section 228 of the DGCL. No prior notice of the actions taken hereby was required or given to any stockholder or other person, and no meeting of the stockholders of the Corporation is required in connection with the actions taken hereby, as the undersigned holds all of the issued and outstanding shares of capital stock of the Corporation and has consented herein to all actions set forth above.
Filing and Record-Keeping. The Secretary or any Assistant Secretary of the Corporation, or any other officer or authorized person designated by the Board of Directors, is hereby authorized and directed to file this Written Consent with the minutes of the proceedings of the stockholders of the Corporation and to maintain this Written Consent at the registered office or principal place of business of the Corporation, in accordance with Section 228(e) of the DGCL and the Bylaws of the Corporation. Prompt notice of the taking of any corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing, as required by Section 228(e) of the DGCL; provided, however, that because the undersigned is the sole stockholder of the Corporation and has consented in writing to all actions set forth herein, no such notice is required.
Governing Law. This Written Consent shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
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SIGNATURE PAGE TO WRITTEN CONSENT OF THE SOLE STOCKHOLDER OF PINNACLE MERGER SUB, INC.
IN WITNESS WHEREOF, the undersigned Sole Stockholder has executed this Written Consent as of the date first written above, effective as of April 7, 2025.
HARROWGATE PRIVATE EQUITY FUND IV LP
By: Harrowgate Capital Partners IV GP LLC,
its General Partner
By: ________
Name: Nathaniel Cross
Title: Managing Partner & Co-Founder, Harrowgate Capital Partners LLC; Authorized Signatory of Harrowgate Capital Partners IV GP LLC
Date: April 7, 2025