VOTING AND SUPPORT AGREEMENT
Dated as of April 7, 2025
among
HARROWGATE PRIVATE EQUITY FUND IV LP, a Delaware limited partnership
PINNACLE MERGER SUB, INC., a Delaware corporation and wholly owned subsidiary of Harrowgate Private Equity Fund IV LP
and
CATHERINE LANGFORD, DEREK SIMMONS, and MAXWELL DUNN,
each an individual
(each individually, a "Stockholder" and collectively, the "Stockholders")
TABLE OF CONTENTS
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VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this "Agreement") is made and entered into as of April 7, 2025, by and among Harrowgate Private Equity Fund IV LP, a Delaware limited partnership ("Parent"), Pinnacle Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), Catherine Langford, an individual ("Langford"), Derek Simmons, an individual ("Simmons"), and Maxwell Dunn, an individual ("Dunn"). Each of Langford, Simmons, and Dunn is referred to herein individually as a "Stockholder" and collectively as the "Stockholders." Parent, Merger Sub, and the Stockholders are each referred to herein individually as a "party" and collectively as the "parties."
RECITALS
WHEREAS, Parent, Merger Sub, and Pennfield Holdings, Inc., a Delaware corporation (the "Company," Nasdaq ticker: PNFD), have entered into that certain Agreement and Plan of Merger, dated as of April 7, 2025 (as it may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), pursuant to which Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving as a wholly owned subsidiary of Parent, in a reverse triangular merger under Section 251 of the Delaware General Corporation Law (the "DGCL");
WHEREAS, the aggregate merger consideration payable under the Merger Agreement is Nine Hundred Eighty Million Dollars ($980,000,000), representing Fifteen Dollars and Ninety-Five Cents ($15.95) per share of Company common stock on a fully diluted basis (based on 61,450,000 shares of Company Common Stock outstanding on a fully diluted basis);
WHEREAS, as of the date hereof, each Stockholder is the Beneficial Owner (as defined below) of shares of common stock, par value $0.01 per share, of the Company ("Company Common Stock"), as set forth opposite such Stockholder's name on Schedule A hereto (together with any additional shares of Company Common Stock acquired by such Stockholder after the date hereof and prior to the Expiration Date, collectively, the "Subject Shares");
WHEREAS, each Stockholder is a member of the Company's senior management team: Langford serves as the Chief Executive Officer of the Company, Simmons serves as the Chief Financial Officer of the Company, and Dunn serves as the Chief Operating Officer of the Company;
WHEREAS, each Stockholder is also party to that certain Rollover Agreement, dated as of April 7, 2025 (the "Rollover Agreement"), by and among Parent, the Company, and the Stockholders, pursuant to which each Stockholder has agreed to contribute a portion of such Stockholder's equity in the Company to the surviving entity in lieu of receiving cash merger consideration for certain rollover shares (the "Rollover Shares"), with aggregate rollover equity of Twenty-One Million Five Hundred Thousand Dollars ($21,500,000) allocated as follows: Langford — Twelve Million Five Hundred Thousand Dollars ($12,500,000); Simmons — Five Million Dollars ($5,000,000); and Dunn — Four Million Dollars ($4,000,000);
WHEREAS, as a condition and inducement to Parent's and Merger Sub's willingness to enter into the Merger Agreement, Parent has required that each Stockholder enter into this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, warranties, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions.
As used in this Agreement, the following terms shall have the respective meanings set forth below:
"Beneficially Own" or "Beneficial Ownership" shall have the meaning ascribed to such term in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the terms "Beneficial Owner" and "Beneficially Owned" shall have correlative meanings. For purposes of this Agreement, a Stockholder shall be deemed to Beneficially Own any shares of Company Common Stock that such Stockholder has the right to acquire (whether such right is exercisable immediately or only after the passage of time or the satisfaction of conditions), including shares issuable upon the exercise of options or the vesting of restricted stock units.
"Company" means Pennfield Holdings, Inc., a Delaware corporation, with its principal executive offices located at 4500 Commerce Boulevard, Suite 800, Charlotte, North Carolina 28202.
"Company Common Stock" means the common stock, par value $0.01 per share, of the Company. As of the date of this Agreement, there are 58,200,000 shares of Company Common Stock outstanding on a basic basis and 61,450,000 shares of Company Common Stock outstanding on a fully diluted basis (giving effect to all outstanding options and restricted stock units).
"Competing Proposal" shall have the meaning ascribed to such term in the Merger Agreement and, for purposes of this Agreement, shall include any proposal, offer, or inquiry from any third party (other than Parent, Merger Sub, or any of their respective affiliates) for (a) an acquisition of twenty percent (20%) or more of the consolidated assets of the Company and its subsidiaries, taken as a whole, (b) an acquisition of twenty percent (20%) or more of the outstanding equity securities of the Company (whether by purchase, tender offer, exchange offer, or otherwise), (c) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company, or (d) any combination of the foregoing, in each case other than the Merger and the transactions contemplated by the Merger Agreement.
"Expiration Date" means the earliest to occur of (a) the Effective Time (as defined in the Merger Agreement), (b) the valid termination of the Merger Agreement in accordance with its terms, and (c) the mutual written agreement of Parent and each of the Stockholders to terminate this Agreement, in each case in accordance with the provisions of Article VII of this Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger, dated as of April 7, 2025, by and among Parent, Merger Sub, and the Company, as it may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Merger Sub" means Pinnacle Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (EIN: 93-4081562), with its registered office at 1200 Market Street, Suite 3100, Wilmington, Delaware 19801, incorporated by its sole incorporator, Jonah Whitfield.
"Parent" means Harrowgate Private Equity Fund IV LP, a Delaware limited partnership, whose general partner is Harrowgate Capital Partners IV GP LLC and whose investment manager is Harrowgate Capital Partners LLC.
"Per-Share Merger Consideration" means Fifteen Dollars and Ninety-Five Cents ($15.95) per share of Company Common Stock, payable in cash, without interest, subject to adjustment as provided in the Merger Agreement.
"Permitted Transferee" means, with respect to any Stockholder, (a) any member of such Stockholder's immediate family (including such Stockholder's spouse, domestic partner, parents, siblings, children, grandchildren, and the spouses or domestic partners of any of the foregoing), (b) any trust established for the benefit of such Stockholder or any member of such Stockholder's immediate family for estate planning purposes, or (c) any entity wholly owned by such Stockholder or one or more members of such Stockholder's immediate family; provided, however, that in each case such Permitted Transferee shall have executed and delivered to Parent a joinder to this Agreement substantially in the form attached hereto as Exhibit A.
"Person" means an individual, corporation, partnership, limited liability company, association, joint venture, trust, unincorporated organization, governmental entity, or other entity.
"Rollover Agreement" means that certain Rollover Agreement, dated as of April 7, 2025, by and among Parent, the Company, and the Stockholders, as it may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Rollover Shares" means the shares of Company Common Stock to be contributed by each Stockholder pursuant to the Rollover Agreement in lieu of receiving the Per-Share Merger Consideration in cash, as set forth on Schedule A hereto.
"Subject Shares" means, with respect to each Stockholder, all shares of Company Common Stock Beneficially Owned by such Stockholder as of the date hereof, as set forth on Schedule A hereto, together with any additional shares of Company Common Stock acquired by such Stockholder after the date hereof and prior to the Expiration Date, including, without limitation, shares acquired through the exercise of stock options, the vesting or settlement of restricted stock units, stock dividends, stock splits, reclassifications, recapitalizations, or similar events. For the avoidance of doubt, the term "Subject Shares" shall include both the Rollover Shares and all other shares of Company Common Stock Beneficially Owned by such Stockholder.
"Superior Proposal" shall have the meaning ascribed to such term in the Merger Agreement.
"Transfer" means, with respect to any security, any sale, transfer, assignment, pledge, encumbrance, hypothecation, gift, placement in trust, or other disposition of such security (whether voluntary or involuntary, by operation of law or otherwise), including, without limitation, the entry into any short position, any "put equivalent position" (as defined in Rule 16a-1(h) under the Exchange Act), or any "call equivalent position" (as defined in Rule 16a-1(b) under the Exchange Act) with respect to such security, or any agreement, arrangement, or understanding, whether or not in writing, to effect any of the foregoing. The terms "Transferred" and "Transferring" shall have correlative meanings.
ARTICLE II — AGREEMENT TO VOTE; VOTING COVENANT
Section 2.1 — Agreement to Vote in Favor of the Merger.
Each Stockholder irrevocably and unconditionally agrees that, during the period commencing on the date hereof and continuing until the Expiration Date, at every annual or special meeting of stockholders of the Company at which any of the matters described in this Section 2.1 are submitted for consideration and vote of the stockholders of the Company, however called, and at every adjournment or postponement thereof, and in connection with any action by written consent of the stockholders of the Company, such Stockholder shall (a) appear at such meeting or otherwise cause all of the Subject Shares to be counted as present thereat for purposes of calculating a quorum and (b) vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all of the Subject Shares Beneficially Owned by such Stockholder as of the applicable record date, as follows:
(a) in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement, including, without limitation, the payment of aggregate merger consideration of Nine Hundred Eighty Million Dollars ($980,000,000) representing the Per-Share Merger Consideration of Fifteen Dollars and Ninety-Five Cents ($15.95) per share of Company Common Stock on a fully diluted basis, and any actions required in furtherance thereof;
(b) in favor of any proposal to adjourn or postpone any meeting of stockholders of the Company at which the Merger Agreement is submitted for adoption and approval to a later date if, as of the date on which such meeting is originally scheduled (as the same may be adjourned or postponed), there are not sufficient votes for the adoption and approval of the Merger Agreement at such meeting; and
(c) against (i) any Competing Proposal, (ii) any action, agreement, or transaction that would reasonably be expected to impede, interfere with, delay, postpone, discourage, or adversely affect the timely consummation of the Merger or any of the other transactions contemplated by the Merger Agreement, and (iii) any action, agreement, or transaction that would reasonably be expected to result in a breach of any covenant, representation, warranty, or other obligation of the Company or any of the Stockholders under the Merger Agreement, this Agreement, or the Rollover Agreement.
The parties acknowledge that the stockholder vote required under Section 251 of the DGCL for the adoption and approval of the Merger Agreement is the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote thereon at a duly convened meeting of stockholders, and that a special meeting of stockholders of the Company for such purpose is currently estimated to be held on or about June 19, 2025. The parties further acknowledge that the proxy solicitor engaged by the Company for such stockholder meeting is Oakhurst Proxy Advisors LLC (contact: Margaret Quinlan). Each Stockholder agrees to cooperate with Oakhurst Proxy Advisors LLC and the Company in connection with the solicitation of proxies in favor of the Merger.
Section 2.2 — Vote Against Competing Proposals.
Without limiting the generality of Section 2.1, each Stockholder irrevocably and unconditionally agrees that, during the period commencing on the date hereof and continuing until the Expiration Date, at every meeting of stockholders of the Company, however called, and at every adjournment or postponement thereof, and in connection with any action by written consent of stockholders, such Stockholder shall vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all of the Subject Shares Beneficially Owned by such Stockholder against:
(a) any Competing Proposal or any other proposal, offer, or transaction made by, with, or involving any Person (other than Parent, Merger Sub, or any of their respective affiliates) relating to any acquisition of the Company or any material portion of its assets or equity securities;
(b) any amendment to the Company's amended and restated certificate of incorporation or amended and restated bylaws (or any other organizational document of the Company) that would, or would reasonably be expected to, impede, frustrate, prevent, nullify, or delay the Merger, this Agreement, or the Merger Agreement, or the consummation of the transactions contemplated hereby or thereby;
(c) any action, proposal, transaction, or agreement that would, or would reasonably be expected to, result in a breach of any covenant, representation, warranty, or other obligation or agreement of the Company under the Merger Agreement or of such Stockholder under this Agreement; and
(d) any action, proposal, transaction, or agreement that would, or would reasonably be expected to, result in any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being timely satisfied or fulfilled.
Section 2.3 — Quorum.
Each Stockholder agrees that, during the period commencing on the date hereof and continuing until the Expiration Date, such Stockholder shall be present (in person or by proxy) at all meetings of stockholders of the Company at which any of the matters described in Section 2.1 or Section 2.2 are to be considered, so that all Subject Shares held by such Stockholder may be counted for purposes of determining the presence of a quorum at such meetings.
ARTICLE III — GRANT OF IRREVOCABLE PROXY
Section 3.1 — Irrevocable Proxy.
Each Stockholder hereby irrevocably grants to, and appoints, Parent, Jonah Whitfield (in his capacity as Principal, Deal Lead of Harrowgate Capital Partners LLC), and any designee of Parent, and each of them individually, as such Stockholder's proxy and attorney-in-fact (with full power of substitution and resubstitution), for and in the name, place, and stead of such Stockholder, to vote (or cause to be voted) the Subject Shares, or to grant a consent or approval in respect of the Subject Shares, in a manner consistent with, and solely as provided in, Section 2.1 and Section 2.2 of this Agreement, at every meeting of stockholders of the Company, however called, and at every adjournment or postponement thereof, and in connection with any action by written consent of stockholders, in each case solely with respect to the matters described in Section 2.1 and Section 2.2 of this Agreement. The proxy and power of attorney granted hereby by each Stockholder shall be limited to the matters set forth in Section 2.1 and Section 2.2 and shall not extend to any other matters to be voted upon by the stockholders of the Company.
Each Stockholder hereby represents and warrants that any proxies heretofore given by such Stockholder in respect of the Subject Shares that may still be in effect, if any, are not irrevocable and that all such proxies are hereby revoked.
The proxy granted pursuant to this Section 3.1 is irrevocable and is coupled with an interest, and is granted by each Stockholder in consideration of Parent and Merger Sub entering into the Merger Agreement and incurring the obligations thereunder. Each Stockholder acknowledges and agrees that the proxy granted hereby is coupled with an interest in the Merger and the transactions contemplated by the Merger Agreement and, to the extent permitted by applicable law, is intended to be irrevocable pursuant to Section 212(e) of the DGCL. The proxy granted herein shall not be revoked or revocable by any Stockholder during the term of this Agreement. If, after the date hereof, any Stockholder is requested or required to execute a proxy card or other similar document with respect to the Subject Shares, such Stockholder shall execute such proxy card or document in a manner not inconsistent with the terms of this Agreement and shall deliver such proxy card or document to Parent or its designee concurrently with the execution thereof.
Section 3.2 — Termination of Proxy.
The proxy and power of attorney granted by each Stockholder pursuant to Section 3.1 shall terminate automatically and without further action upon the occurrence of the Expiration Date, at which time all rights, powers, and authority granted by such Stockholder hereunder shall automatically revert to such Stockholder without the necessity of any further action by any party.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants to Parent and Merger Sub as follows:
Section 4.1 — Authorization; Binding Agreement.
Such Stockholder has full legal capacity, power, and authority to execute and deliver this Agreement, to perform such Stockholder's obligations hereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Stockholder and, assuming the due authorization, execution, and delivery hereof by Parent and Merger Sub, constitutes a legal, valid, and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as such enforcement may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws affecting creditors' rights and remedies generally and (b) general principles of equity (whether applied in a proceeding at law or in equity).
Section 4.2 — Ownership of Subject Shares.
Such Stockholder is the record and/or Beneficial Owner of the number of shares of Company Common Stock set forth opposite such Stockholder's name on Schedule A hereto, and has good and valid title to the Subject Shares set forth therein, free and clear of all liens, pledges, security interests, encumbrances, claims, options, rights of first refusal, preemptive rights, proxies, voting trusts, voting agreements, stockholder agreements, or other restrictions or arrangements of any kind whatsoever (other than (i) as created by this Agreement, (ii) as created by the Rollover Agreement, (iii) restrictions on transfer arising under applicable federal and state securities laws, and (iv) any such restrictions imposed by the Company's organizational documents or equity incentive plans generally applicable to holders of Company Common Stock). The Subject Shares set forth on Schedule A represent all shares of Company Common Stock Beneficially Owned by such Stockholder as of the date hereof, and such Stockholder does not Beneficially Own any shares of Company Common Stock or other equity securities of the Company other than as set forth on Schedule A. Such Stockholder has the sole power to vote and sole power to dispose of the Subject Shares, and no Person other than such Stockholder has any right to direct or approve the voting or disposition of any of the Subject Shares, except as contemplated by this Agreement or the Rollover Agreement.
Section 4.3 — No Conflicts.
The execution, delivery, and performance by such Stockholder of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate or conflict with any applicable law, statute, regulation, rule, order, writ, injunction, judgment, or decree of any court or governmental authority applicable to such Stockholder or the Subject Shares, (b) conflict with, result in a breach or violation of, constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or give rise to a right of termination, cancellation, or acceleration of any obligation or a loss of a material benefit under, any contract, agreement, arrangement, instrument, or understanding to which such Stockholder is a party or by which such Stockholder or any of the Subject Shares is bound, or (c) result in the creation or imposition of any lien, pledge, security interest, encumbrance, or other restriction on any of the Subject Shares.
Section 4.4 — No Litigation.
As of the date hereof, there is no action, suit, claim, arbitration, proceeding, or investigation pending or, to the knowledge of such Stockholder, threatened against or affecting such Stockholder before or by any court, governmental authority, or arbitrator that would impair or adversely affect such Stockholder's ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby on a timely basis. There is no outstanding order, writ, judgment, injunction, decree, determination, or award of any court or governmental authority against or binding upon such Stockholder that would impair or adversely affect such Stockholder's ability to perform its obligations under this Agreement.
Section 4.5 — No Finder's Fees.
No Stockholder has incurred, or will incur, directly or indirectly, any liability for any brokerage, finder's, financial advisory, or similar fee or commission in connection with the transactions contemplated by this Agreement. No Stockholder has engaged any broker, finder, investment banker, or other intermediary in connection with the transactions contemplated by this Agreement.
Section 4.6 — Reliance.
Such Stockholder acknowledges and understands that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Stockholder's execution, delivery, and performance of this Agreement and the representations, warranties, covenants, and agreements of such Stockholder set forth herein. Such Stockholder further acknowledges and understands that the Merger Agreement and the transactions contemplated thereby are of substantial value to Parent and Merger Sub, and that Parent and Merger Sub would not have entered into the Merger Agreement but for the agreements of the Stockholders set forth in this Agreement.
ARTICLE V — REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub hereby represents and warrants to the Stockholders as follows:
Section 5.1 — Organization and Good Standing.
Parent is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Merger Sub is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. Each of Parent and Merger Sub has all requisite power and authority to own, lease, and operate its properties and to conduct its business as presently conducted.
Section 5.2 — Authorization; Binding Agreement.
Each of Parent and Merger Sub has full limited partnership or corporate power and authority, as applicable, to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by each of Parent and Merger Sub, and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary limited partnership or corporate action, as applicable, on the part of Parent and Merger Sub, and no other limited partnership or corporate proceedings on the part of Parent or Merger Sub are necessary to authorize the execution, delivery, and performance of this Agreement. This Agreement has been duly and validly executed and delivered by each of Parent and Merger Sub and, assuming the due execution and delivery hereof by each Stockholder, constitutes a legal, valid, and binding obligation of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, except as such enforcement may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws affecting creditors' rights and remedies generally and (b) general principles of equity (whether applied in a proceeding at law or in equity).
Section 5.3 — No Conflicts.
The execution, delivery, and performance by each of Parent and Merger Sub of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate or conflict with any provision of the certificate of limited partnership, limited partnership agreement, certificate of incorporation, bylaws, or other governing or organizational documents of Parent or Merger Sub, as applicable, (b) violate or conflict with any applicable law, statute, regulation, rule, order, writ, injunction, judgment, or decree of any court or governmental authority applicable to Parent or Merger Sub, or (c) conflict with, result in a breach or violation of, constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or give rise to a right of termination, cancellation, or acceleration of any obligation under, any contract, agreement, arrangement, instrument, or understanding to which Parent or Merger Sub is a party or by which Parent or Merger Sub is bound.
ARTICLE VI — COVENANTS OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby covenants and agrees as follows:
Section 6.1 — Restriction on Transfer.
From the date hereof until the Expiration Date, no Stockholder shall, directly or indirectly, Transfer any Subject Shares (other than Rollover Shares transferred pursuant to the Rollover Agreement at the Effective Time), or enter into any agreement, arrangement, or understanding with respect to the Transfer of any Subject Shares, or deposit any Subject Shares into a voting trust or enter into any voting agreement or arrangement with respect to any Subject Shares, except:
(a) Transfers to a Permitted Transferee; provided that, as a condition precedent to such Transfer, such Permitted Transferee shall have executed and delivered to Parent a joinder agreement substantially in the form attached hereto as Exhibit A, pursuant to which such Permitted Transferee agrees to be bound by all of the terms and conditions of this Agreement as if such Permitted Transferee were a Stockholder hereunder with respect to such Transferred Subject Shares;
(b) Transfers in connection with the consummation of the Merger at the Effective Time, including the exchange of Subject Shares (other than Rollover Shares) for the Per-Share Merger Consideration and the contribution of Rollover Shares pursuant to the Rollover Agreement; and
(c) Transfers consented to in advance in writing by Parent, which consent may be withheld in Parent's sole and absolute discretion.
Any purported Transfer of Subject Shares in violation of this Section 6.1 shall be null and void ab initio and of no force or effect whatsoever, and no party shall recognize any such purported Transfer. In the event of any such purported Transfer, the Company shall not, and each Stockholder hereby authorizes and directs the Company not to, (i) register any such Transfer on the stock transfer books and records of the Company or (ii) treat any purported transferee as the owner of such Subject Shares for any purpose.
Section 6.2 — No Solicitation.
Each Stockholder agrees that such Stockholder shall not, and shall use reasonable best efforts to cause such Stockholder's representatives, agents, advisors, and other Persons acting on such Stockholder's behalf not to, directly or indirectly:
(a) solicit, initiate, propose, or knowingly encourage or facilitate (including by way of furnishing non-public information) the submission of any inquiry, proposal, or offer from any Person (other than Parent, Merger Sub, or their respective affiliates) relating to, or that constitutes or may reasonably be expected to lead to, any Competing Proposal;
(b) participate or engage in any discussions or negotiations with, or furnish any non-public information to, any Person (other than Parent, Merger Sub, or their respective affiliates) in connection with, or that may reasonably be expected to lead to, any Competing Proposal; or
(c) enter into, approve, endorse, recommend, or otherwise support any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, joint venture agreement, partnership agreement, or any other similar agreement, arrangement, or understanding (whether written or oral, binding or non-binding) with respect to any Competing Proposal.
The foregoing non-solicitation obligations of each Stockholder are consistent with, and are in addition to (and not in limitation of), the "no-shop" covenant of the Company set forth in the Merger Agreement, which restricts the Company and its representatives from soliciting competing proposals following execution of the Merger Agreement, subject to a customary fiduciary-out exception permitting the Company's board of directors to consider and respond to a Superior Proposal as and to the extent set forth in the Merger Agreement. For the avoidance of doubt, nothing in this Section 6.2 shall limit or affect any actions taken by a Stockholder in his or her capacity as a director or officer of the Company, as further set forth in Section 6.8.
Section 6.3 — Notice of Certain Events.
Each Stockholder shall promptly (and in any event within twenty-four (24) hours) notify Parent in writing if such Stockholder receives, at any time during the period commencing on the date hereof and continuing until the Expiration Date:
(a) any offer, proposal, or inquiry relating to, or that constitutes or may reasonably be expected to lead to, a Competing Proposal;
(b) any request for information relating to the Company or its subsidiaries, or for access to the Company's properties, books, or records, by any Person (other than Parent, Merger Sub, or their respective affiliates) that such Stockholder reasonably believes is in connection with a Competing Proposal; or
(c) any communication from any Person (other than Parent, Merger Sub, or their respective affiliates) relating to a potential Competing Proposal.
Such notice shall include the identity of the Person making such offer, proposal, inquiry, request, or communication and a summary of the material terms and conditions thereof (to the extent known to such Stockholder). Each Stockholder shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such offer, proposal, inquiry, request, or communication and any material developments with respect thereto.
Section 6.4 — No Appraisal Rights.
Each Stockholder hereby irrevocably and unconditionally waives, and agrees not to exercise, assert, or perfect (or attempt to exercise, assert, or perfect), and agrees to cause to be withdrawn any exercise, assertion, or perfection of, any rights of appraisal, any dissenters' rights, or any similar rights that such Stockholder may have under Section 262 of the DGCL or otherwise with respect to any Subject Shares in connection with the Merger or any of the other transactions contemplated by the Merger Agreement. Each Stockholder agrees not to commence, join in, or otherwise participate in, as a party, class member, or otherwise, any claim, derivative action, or other proceeding, in law or in equity, against the Company, Parent, Merger Sub, or any of their respective affiliates, directors, officers, or employees, challenging the validity of or seeking to restrain, delay, or prevent consummation of the Merger or any of the other transactions contemplated by the Merger Agreement, or seeking damages or other relief in connection with the Merger, except to the extent that the foregoing would prevent a Stockholder from enforcing such Stockholder's rights under this Agreement, the Rollover Agreement, or the Merger Agreement.
Section 6.5 — Further Assurances.
Each Stockholder shall, from time to time, at the reasonable request of Parent or Merger Sub, execute and deliver, or cause to be executed and delivered, such additional or further instruments, documents, certificates, consents, and assurances, and take or cause to be taken such further actions, as may be necessary or reasonably requested by Parent or Merger Sub to carry out the purposes and intent of this Agreement and to give full effect to the transactions contemplated hereby, including executing and delivering any additional proxies, consents, or authorizations that may be necessary or appropriate.
Section 6.6 — Stop Transfer.
Each Stockholder agrees and acknowledges that this Agreement and the obligations hereunder shall attach to the Subject Shares and shall be binding upon any Person to which legal or Beneficial Ownership of any Subject Shares shall pass, whether by operation of law or otherwise. Each Stockholder consents to, and hereby authorizes, the Company (through its transfer agent, Marlowe Asset Management Stock Transfer, Inc., or any successor transfer agent) and Parent placing a notation or legend on the transfer records of the Company and, to the extent applicable, on any certificates representing the Subject Shares (or book-entry positions corresponding thereto), noting the restrictions on Transfer contained in this Agreement. Each Stockholder agrees to cooperate with the Company and Parent in connection with the implementation of the foregoing stop transfer instructions and legends.
Section 6.7 — Adjustments to Subject Shares.
In the event of any stock split, reverse stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of shares, or other similar transaction of or by the Company affecting the Company Common Stock occurring after the date hereof and prior to the Expiration Date, the term "Subject Shares" shall be deemed to refer to and include all such shares, securities, or other property of the Company received by a Stockholder in respect of the Subject Shares in connection with such transaction, and the provisions of this Agreement (including the voting, transfer restriction, and proxy provisions) shall apply to and be fully effective with respect to any and all such additional shares, securities, or other property.
Section 6.8 — Capacity.
Each Stockholder is entering into this Agreement solely in such Stockholder's capacity as a record and/or Beneficial Owner of Subject Shares, and nothing contained in this Agreement shall limit or affect any actions taken by such Stockholder (or any designee or representative of such Stockholder) in his or her capacity as a director, officer, or employee of the Company (including, without limitation, any actions taken in connection with the Company's board of directors' evaluation and consideration of a Superior Proposal in accordance with the Merger Agreement). Any such actions taken by a Stockholder in such Stockholder's capacity as a director, officer, or employee of the Company, including any vote cast by a Stockholder in his or her capacity as a member of the Company's board of directors with respect to any Competing Proposal, Superior Proposal, or any other matter, shall not be deemed a breach of this Agreement. For the avoidance of doubt, nothing in this Agreement shall limit or affect the exercise by the Company's board of directors (or any committee thereof, including any special committee) of its fiduciary duties under applicable law.
ARTICLE VII — TERMINATION
Section 7.1 — Termination.
This Agreement shall automatically terminate, and no party hereto shall have any further rights or obligations hereunder (except as provided in Section 7.2), upon the earliest to occur of:
(a) the Effective Time of the Merger (at which point the covenants herein shall be deemed to have been fully performed);
(b) the valid termination of the Merger Agreement in accordance with Article IX thereof;
(c) the mutual written agreement of Parent and each of the Stockholders to terminate this Agreement, executed and delivered by all such parties; and
(d) any amendment, modification, supplement, or waiver of the Merger Agreement that, without the prior written consent of the applicable Stockholder: (i) reduces the Per-Share Merger Consideration below Fifteen Dollars and Ninety-Five Cents ($15.95) per share of Company Common Stock, (ii) changes the form of consideration payable to holders of Company Common Stock from all-cash consideration (other than with respect to the Rollover Shares) to any other form of consideration (including, without limitation, stock, notes, or other non-cash consideration), (iii) extends the Outside Date (currently September 30, 2025) beyond September 30, 2025, or (iv) imposes additional conditions to the closing of the Merger that would be materially adverse to the Stockholders (in their capacity as holders of Subject Shares) relative to the conditions set forth in the Merger Agreement as in effect on the date hereof.
Section 7.2 — Effect of Termination.
Upon the termination of this Agreement pursuant to Section 7.1, this Agreement shall become void and of no further force or effect, and no party hereto shall have any liability or obligation under this Agreement following such termination; provided, however, that (a) this Article VII and Article VIII (Miscellaneous) shall survive any termination of this Agreement, and (b) the termination of this Agreement shall not relieve any party of liability for any willful and material breach of this Agreement, or any fraud, in each case committed prior to such termination, and the aggrieved party's rights and remedies with respect to any such willful and material breach or fraud shall survive the termination of this Agreement.
ARTICLE VIII — MISCELLANEOUS
Section 8.1 — Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by email (with written confirmation of receipt by non-automated reply), (c) one (1) business day after being sent by a nationally recognized overnight courier service (receipt requested), or (d) three (3) business days after being mailed by certified or registered mail, return receipt requested, postage prepaid, in each case addressed as follows:
If to Parent or Merger Sub:
Harrowgate Private Equity Fund IV LP 1200 Market Street, Suite 3100 Wilmington, Delaware 19801
Attention: Jonah Whitfield, Principal
Email: jwhitfield@harrowgatecapital.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP One Liberty Plaza, 55th Floor New York, New York 10006
Attention: Oliver Mackenzie
Email: omackenzie@calderwoodharkness.com
If to the Stockholders:
Catherine Langford c/o Pennfield Holdings, Inc. 4500 Commerce Boulevard, Suite 800 Charlotte, North Carolina 28202
Email: clangford@pennfieldholdings.com
Derek Simmons c/o Pennfield Holdings, Inc. 4500 Commerce Boulevard, Suite 800 Charlotte, North Carolina 28202
Email: dsimmons@pennfieldholdings.com
Maxwell Dunn c/o Pennfield Holdings, Inc. 4500 Commerce Boulevard, Suite 800 Charlotte, North Carolina 28202
Email: mdunn@pennfieldholdings.com
with a copy (which shall not constitute notice) to:
Calloway, Briggs & Harmon LLP 900 Third Avenue, 30th Floor New York, New York 10022
Attention: Janet Alcorn
Email: jalcorn@callowaylaw.com
Any party may change its address for purposes of this Section 8.1 by giving the other parties written notice of the new address in the manner set forth above.
Section 8.2 — Governing Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict-of-laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.3 — Jurisdiction and Venue.
Each party hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, or, if (and only if) such court lacks subject matter jurisdiction, any federal court of the United States sitting in the State of Delaware, and any appellate courts therefrom (collectively, the "Chosen Courts"), in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment relating thereto, and agrees that all claims in respect of any such action or proceeding shall be heard and determined exclusively in the Chosen Courts, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in the Chosen Courts, including any objection based on the doctrine of forum non conveniens or any similar doctrine, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action or proceeding in the Chosen Courts, and (d) consents to service of process in any such action or proceeding by delivering a copy thereof in the manner provided for notices under Section 8.1 of this Agreement or in any other manner permitted by applicable law.
Section 8.4 — Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
Section 8.5 — Entire Agreement.
This Agreement (including the schedules and exhibits hereto), together with the Merger Agreement and the Rollover Agreement, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, both written and oral, among the parties hereto with respect to such subject matter. There are no representations, warranties, covenants, or agreements among the parties hereto relating to the subject matter hereof other than those expressly set forth or referred to herein.
Section 8.6 — Amendments and Waivers.
No amendment, modification, supplement, or waiver of any provision of this Agreement, and no consent to any departure by any party from any provision of this Agreement, shall be effective unless set forth in a written instrument duly executed and delivered by Parent, Merger Sub, and each Stockholder affected by such amendment, modification, supplement, waiver, or consent. No waiver by any party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default, and no waiver shall be effective unless made in writing and signed by the party giving such waiver. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they may otherwise have at law or in equity.
Section 8.7 — Severability.
If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 8.8 — Assignment.
No party hereto may assign, delegate, or otherwise transfer any of its rights, interests, or obligations under this Agreement without the prior written consent of the other parties hereto; provided, however, that Parent may assign all or any portion of its rights under this Agreement (including the irrevocable proxy granted pursuant to Article III) to any wholly owned subsidiary or affiliate of Parent without the consent of the Stockholders, so long as (a) such assignee expressly assumes all of the obligations of Parent hereunder in a written instrument delivered to each Stockholder and (b) no such assignment shall relieve Parent of its obligations hereunder. Any purported assignment, delegation, or transfer in violation of this Section 8.8 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors, administrators, and permitted assigns.
Section 8.9 — Specific Performance.
The parties hereto acknowledge and agree that the rights of each party hereunder are unique and that irreparable harm would result if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that monetary damages alone would not be an adequate remedy for any such non-performance or breach. Accordingly, in addition to any other remedy to which a non-breaching party may be entitled at law or in equity, the parties hereto shall be entitled to an injunction or injunctions, specific performance, and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in the Chosen Courts, without the necessity of proving actual damages or posting any bond or other security (any requirement for which is hereby waived). Each party hereto further agrees that it shall not oppose the granting of an injunction, specific performance, or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.
Section 8.10 — No Third-Party Beneficiaries.
Except as expressly provided in this Agreement, nothing contained in this Agreement, express or implied, is intended to confer upon any Person other than the parties hereto (and their respective successors, heirs, executors, administrators, and permitted assigns) any rights, benefits, remedies, obligations, or liabilities of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, no creditor of any party hereto shall have any rights hereunder.
Section 8.11 — Counterparts.
This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which counterparts together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, email in portable document format (PDF), or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement. The words "execution," "signed," "signature," and words of similar import in this Agreement shall be deemed to include electronic signatures, which shall be of the same legal effect, validity, or enforceability as a manually executed signature, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York Electronic Signatures and Records Act, and any other similar state law based on the Uniform Electronic Transactions Act.
Section 8.12 — Expenses.
Except as otherwise expressly provided herein or in the Merger Agreement, each party hereto shall bear its own costs and expenses (including attorneys' fees, accountants' fees, and other out-of-pocket expenses) incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement and the transactions contemplated hereby.
Section 8.13 — No Ownership Interest.
Nothing contained in this Agreement shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership of, or with respect to, any Subject Shares. All rights, ownership, and economic benefits (including the right to receive dividends or distributions) of and relating to the Subject Shares shall remain vested in and belong to the applicable Stockholder, and neither Parent nor Merger Sub shall have any authority to direct or control the applicable Stockholder in the voting or disposition of any of the Subject Shares, except as and to the extent expressly set forth in this Agreement (including pursuant to the irrevocable proxy granted in Article III hereof solely with respect to the matters set forth in Section 2.1 and Section 2.2).
Section 8.14 — Interpretation.
(a) The headings and captions contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(b) Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall include the plural, and vice versa.
(c) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(d) The words "herein," "hereof," "hereby," "hereunder," and words of similar import shall refer to this Agreement as a whole (including the schedules and exhibits hereto) and not to any particular provision hereof, unless the context otherwise requires.
(e) All references herein to "Articles," "Sections," "Schedules," and "Exhibits" shall refer to the corresponding Articles, Sections, Schedules, and Exhibits of or attached to this Agreement, unless otherwise specifically provided.
(f) All references herein to "dollars" or "$" shall refer to United States dollars.
(g) References to any statute, rule, or regulation shall be deemed to refer to such statute, rule, or regulation as amended from time to time and to any rules or regulations promulgated thereunder.
(h) The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
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SIGNATURE PAGES TO VOTING AND SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Voting and Support Agreement as of the date first written above.
PARENT:
HARROWGATE PRIVATE EQUITY FUND IV LP
By: Harrowgate Capital Partners IV GP LLC,
its General Partner
By: ________
Name: Nathaniel Cross
Title: Authorized Signatory
Date: ________
MERGER SUB:
PINNACLE MERGER SUB, INC.
By: ________
Name: Jonah Whitfield
Title: President
Date: ________
STOCKHOLDERS:
________________________________________
Catherine Langford