1041-00003 · Solara Digital Infrastructure LP · Transaction Documents/Merger Agreement

exhibit-f-rollover-agreement-hargrove-form.docx DOCUMENT M&A / Corporate

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EXHIBIT F

TO AGREEMENT AND PLAN OF MERGER

FORM OF ROLLOVER AGREEMENT

This is a form of exhibit attached to the Agreement and Plan of Merger, dated as of [●], 20[●], among [●] (the "Target" or the "Company"), [●] (the "Merger Sub"), and [●] (the "Buyer" or "Parent") (the "Merger Agreement"). All bracketed fields are to be completed at the time of execution. This form is illustrative and shall be conformed to reflect the final terms negotiated by the parties at the time of signing.

ROLLOVER AGREEMENT

This Rollover Agreement (this "Agreement") is made and entered into as of [●], 20[●], by and among:

(1) [●], a Delaware limited partnership (the "Buyer" or "Parent");

(2) [●], a Delaware corporation and a wholly owned subsidiary of the Buyer ("Merger Sub"); and

(3) Jonathan Hargrove, an individual residing at [●] (the "Rollover Shareholder" or "Hargrove").

Each of the foregoing is sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, the Buyer, Merger Sub, and [●], a public limited company incorporated under the laws of England and Wales (the "Target" or the "Company"), have entered into (or are concurrently entering into) that certain Agreement and Plan of Merger, dated as of [●], 20[●] (as the same may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), pursuant to which, among other things, Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of the Buyer;

WHEREAS, the Merger is structured as a reverse triangular merger under the Delaware General Corporation Law, pursuant to which Merger Sub will merge with and into the Company, and the separate corporate existence of Merger Sub will cease, with the Company continuing as the surviving corporation;

WHEREAS, the Rollover Shareholder is the record and beneficial owner of [●] shares of common stock of the Company (the "Total Shares"), representing the Rollover Shareholder's entire equity interest in the Company other than equity awards set forth on Schedule A hereto;

WHEREAS, in lieu of receiving the per-share merger consideration payable under the Merger Agreement for all of the Total Shares, the Rollover Shareholder desires to contribute a portion of the Total Shares (the "Rollover Shares") to the Buyer (or a designated affiliate of the Buyer) in exchange for equity interests in the Surviving Entity (as defined below), on the terms and subject to the conditions set forth herein;

WHEREAS, the Rollover Shareholder has elected to roll over [●]% of the Total Shares, representing [●] Rollover Shares, into equity interests of the post-closing entity on the terms described herein;

WHEREAS, the remaining [●] shares of Common Stock held by the Rollover Shareholder that are not Rollover Shares (the "Cashed-Out Shares") shall be converted at the Effective Time into the right to receive the per-share merger consideration payable pursuant to the Merger Agreement;

WHEREAS, this Agreement is being entered into as a condition to the willingness of the Buyer to enter into the Merger Agreement and to consummate the transactions contemplated thereby, and the Buyer would not have entered into the Merger Agreement without the execution and delivery of this Agreement by the Rollover Shareholder; and

WHEREAS, concurrently with the execution and delivery of this Agreement, the Rollover Shareholder is entering into that certain Voting and Support Agreement, dated as of the date hereof, by and among the Buyer and the Rollover Shareholder (the "Voting Agreement"), pursuant to which, among other things, the Rollover Shareholder has agreed to vote the Total Shares in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement.

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

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms

As used in this Agreement, the following terms shall have the meanings set forth below:

"Agreement" means this Rollover Agreement, including all Schedules and Appendices hereto, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof.

"Buyer" or "Parent" means [●], a Delaware limited partnership.

"Cashed-Out Shares" means the shares of Common Stock held by the Rollover Shareholder that are not Rollover Shares. The Cashed-Out Shares shall be entitled to receive the Per-Share Merger Consideration at the Effective Time in accordance with the terms of the Merger Agreement.

"Closing" means the closing of the Merger as defined in, and in accordance with, the Merger Agreement.

"Closing Date" means the date on which the Closing occurs.

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

"Company" or "Target" means [●], a public limited company incorporated under the laws of England and Wales.

"Effective Time" means the effective time of the Merger as set forth in the Certificate of Merger filed with the Secretary of State of the State of Delaware (or such other applicable governmental office) in connection with the consummation of the Merger, as determined in accordance with the Merger Agreement.

"Enforceability Exceptions" means the exceptions to enforceability arising from applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and other similar laws of general applicability affecting or relating to creditors' rights generally, and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity).

"Equity Interest" means the limited partnership interest, membership interest, or other equity interest received by the Rollover Shareholder in the Surviving Entity, the Buyer, or a designated affiliate of the Buyer in exchange for the Rollover Shares, having the terms and conditions set forth in Schedule B hereto and in the organizational documents of the issuing entity.

"Governmental Authority" means any federal, state, provincial, local, municipal, foreign, or other government or governmental or quasi-governmental authority of any nature, including any governmental agency, branch, department, official, entity, or instrumentality, and any court, arbitrator, or other tribunal.

"Lien" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, option, right of first refusal, preemptive right, or other restriction or limitation of any kind, whether arising by contract, operation of law, or otherwise.

"Merger" means the merger of Merger Sub with and into the Company pursuant to the Merger Agreement, with the Company surviving as the surviving corporation.

"Merger Agreement" means the Agreement and Plan of Merger, dated as of [●], 20[●], by and among the Company, Merger Sub, and the Buyer, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.

"Merger Consideration" means $[●] per share in cash (the "Per-Share Merger Consideration"), without interest, as set forth in the Merger Agreement, less any applicable withholding Taxes.

"Merger Sub" means [●], a Delaware corporation and a wholly owned subsidiary of the Buyer.

"Per-Share Merger Consideration" has the meaning set forth in the definition of "Merger Consideration."

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

"Rollover Consideration" means the Equity Interest issued to the Rollover Shareholder in exchange for the Rollover Shares, having an agreed value equal to the Rollover Value.

"Rollover Percentage" means [●]% of the Total Shares.

"Rollover Shares" means the number of shares of Common Stock equal to the Rollover Percentage of the Total Shares, being [●] shares of Common Stock.

"Rollover Value" means the aggregate value of the Rollover Shares, calculated as the product of (i) the number of Rollover Shares multiplied by (ii) the Per-Share Merger Consideration.

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

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

"Tax" or "Taxes" means any and all federal, state, provincial, local, municipal, foreign, and other taxes of any kind, including income, franchise, profits, gross receipts, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, social security, withholding, employment, unemployment, disability, value added, alternative or add-on minimum, estimated, and other taxes, charges, fees, levies, duties, customs, tariffs, imposts, assessments, obligations, and similar charges imposed by any Governmental Authority, together with all interest, penalties, additions to tax, and additional amounts imposed with respect thereto.

"Total Shares" means [●] shares of Common Stock owned of record and beneficially by the Rollover Shareholder as of the date of this Agreement.

"Voting Agreement" means the Voting and Support Agreement, dated as of the date hereof, by and among the Buyer and the Rollover Shareholder, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.

Section 1.2 — Terms Defined in the Merger Agreement

Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement, as in effect on the date hereof (or, if the Merger Agreement is amended after the date hereof, as in effect as so amended, unless the context requires otherwise).

Section 1.3 — Interpretation

Unless the context of this Agreement otherwise requires: (a) references to "Sections," "Articles," "Schedules," and "Appendices" are to the Sections, Articles, Schedules, and Appendices of this Agreement; (b) the headings and captions in this Agreement are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement; (c) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (d) words importing the singular shall include the plural, and vice versa; (e) words importing one gender shall include all other genders; (f) references to "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (g) references to any statute shall be deemed to refer to such statute as amended from time to time, and to any rules, regulations, and interpretations promulgated thereunder, unless the context requires otherwise; (h) references to "days" shall mean calendar days, unless otherwise specified as "business days"; (i) references to "$" or "dollars" shall mean United States dollars; and (j) 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 provisions of this Agreement.

ARTICLE II — ROLLOVER CONTRIBUTION

Section 2.1 — Rollover Commitment

At or immediately prior to the Effective Time, and subject to the terms and conditions of this Agreement (including the satisfaction or waiver of the conditions set forth in Article III):

(a) Contribution of Rollover Shares. The Rollover Shareholder shall contribute, assign, transfer, convey, and deliver to the Buyer (or a designated affiliate of the Buyer, as notified in writing by the Buyer to the Rollover Shareholder no later than five (5) business days prior to the Closing Date) all of the Rollover Shares, free and clear of all Liens (other than restrictions arising under applicable securities laws and restrictions arising under this Agreement). Upon the consummation of such contribution, the Rollover Shareholder shall cease to have any right, title, or interest in or to the Rollover Shares, and the Buyer (or its designated affiliate) shall become the sole record and beneficial owner thereof.

(b) Issuance of Rollover Consideration. In exchange for the contribution of the Rollover Shares described in Section 2.1(a), the Buyer (or its designated affiliate) shall issue to the Rollover Shareholder the Rollover Consideration, which shall consist of the Equity Interest having the terms and conditions described in Schedule B hereto and in the organizational documents of the issuing entity. The Equity Interest shall have an agreed value, for purposes of this Agreement, equal to the Rollover Value.

The Parties acknowledge and agree that the exchange contemplated by this Section 2.1 is intended to occur contemporaneously with, but immediately prior to, the closing of the Merger. The Rollover Shares shall be excluded from the shares of Common Stock that are converted into the right to receive the Per-Share Merger Consideration at the Effective Time pursuant to the Merger Agreement, and the Rollover Shares shall instead be treated as provided in this Agreement.

Section 2.2 — Rollover Value Calculation

The Rollover Value shall be equal to the product of (i) the number of Rollover Shares multiplied by (ii) the Per-Share Merger Consideration. The Equity Interest issued to the Rollover Shareholder pursuant to Section 2.1(b) shall be valued, for all purposes of this Agreement, at an amount equal to the Rollover Value. For the avoidance of doubt, the Rollover Value is calculated as follows:

[●] Rollover Shares × $[●] Per-Share Merger Consideration = $[●] Rollover Value

The Parties acknowledge and agree that the foregoing valuation of the Equity Interest is being established by mutual agreement for purposes of this Agreement and the transactions contemplated hereby, and that such valuation shall not constitute a representation or warranty by any Party as to the fair market value of the Equity Interest or the Rollover Shares at any time following the Closing.

Section 2.3 — Treatment of Cashed-Out Shares

The Cashed-Out Shares (being [●] shares of Common Stock) shall be treated in accordance with the terms and conditions of the Merger Agreement. At the Effective Time, each Cashed-Out Share shall be converted into the right to receive the Per-Share Merger Consideration in cash, without interest, subject to any applicable withholding of Taxes as provided in the Merger Agreement and Section 2.5 of this Agreement. The Rollover Shareholder shall be entitled to receive the aggregate Per-Share Merger Consideration payable in respect of the Cashed-Out Shares in accordance with the payment and exchange procedures set forth in the Merger Agreement, including through the exchange agent appointed thereunder.

Section 2.4 — Delivery Mechanics

(a) Delivery of Rollover Shares. No later than two (2) business days prior to the Closing Date (or at such other time as the Buyer and the Rollover Shareholder may mutually agree), the Rollover Shareholder shall deliver or cause to be delivered to the Buyer (or its designated affiliate, as applicable) stock certificates representing the Rollover Shares (if the Rollover Shares are evidenced by certificates), duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, together with any other documents reasonably requested by the Buyer to effect the valid transfer of the Rollover Shares. If the Rollover Shares are held in book-entry form, the Rollover Shareholder shall deliver or cause to be delivered to the Buyer evidence of book-entry transfer in form and substance reasonably satisfactory to the Buyer, together with such transfer instructions and authorizations as the Buyer may reasonably require.

(b) Shares Held in Street Name. To the extent that any Rollover Shares are held in "street name" by or through a broker, dealer, bank, nominee, or other intermediary, the Rollover Shareholder shall take all actions necessary and within the Rollover Shareholder's control to cause such Rollover Shares to be transferred to an account designated by the Buyer (or its designated affiliate), including by delivering to such broker, dealer, bank, nominee, or other intermediary irrevocable instructions to transfer such Rollover Shares, in each case in form and substance reasonably satisfactory to the Buyer.

(c) Delivery of Equity Interest. At the Effective Time (or as promptly as practicable thereafter), the Buyer (or its designated affiliate) shall deliver or cause to be delivered to the Rollover Shareholder evidence of the issuance of the Equity Interest in such form as is customary for the applicable type of equity interest, which may include, without limitation, a certificate evidencing a limited partnership interest, a counterpart signature page to the applicable organizational documents reflecting the Rollover Shareholder's admission as a partner or member (as applicable), an entry on the books and records of the issuing entity, or such other documentation as is customary and appropriate.

Section 2.5 — Withholding

The Buyer, Merger Sub, the Surviving Entity, and each of their respective affiliates shall be entitled to deduct and withhold from any amounts otherwise payable, deliverable, or issuable pursuant to this Agreement such amounts as may be required to be deducted and withheld under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of federal, state, local, or foreign Tax law. Without limiting the generality of the foregoing, any such deduction and withholding may include amounts required to be withheld pursuant to Sections 1441, 1442, 1445 (relating to the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA")), 1446, or 3406 (relating to backup withholding) of the Code, or any analogous provision of state, local, or non-U.S. Tax law. To the extent that amounts are so deducted and withheld, and are properly remitted to the applicable Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid or issued, as applicable, to the Rollover Shareholder in respect of whom such deduction and withholding was made. Prior to making any such deduction or withholding (other than any deduction or withholding required under Section 3406 of the Code), the Buyer shall use commercially reasonable efforts to provide the Rollover Shareholder with reasonable advance notice of any intended withholding and shall cooperate in good faith with the Rollover Shareholder to reduce or eliminate any such withholding to the extent permitted by applicable law.

Section 2.6 — Adjustments

If, between the date of this Agreement and the Effective Time, the outstanding shares of Common Stock shall have been changed into a different number or class of shares by reason of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into shares of Common Stock), subdivision, reclassification, recapitalization, combination, exchange of shares, or other similar transaction, then the number of Rollover Shares and the Rollover Value shall be equitably and proportionately adjusted to reflect such change, and all references in this Agreement to the Rollover Shares and the Rollover Value shall be deemed to refer to the Rollover Shares and the Rollover Value as so adjusted. Any such adjustment shall be determined by the Buyer in good faith and shall be reasonably satisfactory to the Rollover Shareholder.

ARTICLE III — CONDITIONS TO ROLLOVER

Section 3.1 — Conditions to Obligations of All Parties

The obligations of each Party to consummate the rollover contribution contemplated by Section 2.1 shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver by the applicable Party) of each of the following conditions at or prior to the Effective Time:

(a) Merger Agreement Conditions. All conditions precedent to the closing of the Merger set forth in the Merger Agreement shall have been satisfied or waived in accordance with the terms of the Merger Agreement (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).

(b) No Termination. The Merger Agreement shall not have been terminated in accordance with its terms prior to the Effective Time.

(c) No Legal Impediment. No Governmental Authority of competent jurisdiction shall have issued any order, injunction, decree, judgment, ruling, or other legal restraint that is in effect and that prohibits, enjoins, restrains, or makes illegal the consummation of the rollover contribution contemplated by this Agreement.

Section 3.2 — Conditions to Obligations of the Buyer

The obligation of the Buyer to consummate the rollover contribution and to issue the Rollover Consideration shall be further subject to the satisfaction (or waiver by the Buyer) of each of the following additional conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties of the Rollover Shareholder set forth in Article IV shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties expressly speak as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specified date).

(b) Performance of Covenants. The Rollover Shareholder shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by the Rollover Shareholder at or prior to the Closing.

(c) Delivery of Rollover Shares. The Rollover Shareholder shall have delivered or caused to be delivered the Rollover Shares and all other deliverables specified in Section 2.4(a) and Section 2.4(b), as applicable, in form and substance reasonably satisfactory to the Buyer.

Section 3.3 — Conditions to Obligations of the Rollover Shareholder

The obligation of the Rollover Shareholder to consummate the rollover contribution and to deliver the Rollover Shares shall be further subject to the satisfaction (or waiver by the Rollover Shareholder) of each of the following additional conditions:

(a) Accuracy of Representations and Warranties. The representations and warranties of the Buyer set forth in Article V shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties expressly speak as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specified date).

(b) Performance of Covenants. The Buyer shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by the Buyer at or prior to the Closing.

(c) Delivery of Equity Interest. The Buyer (or its designated affiliate) shall have delivered or caused to be delivered to the Rollover Shareholder the Equity Interest in accordance with Section 2.4(c), together with such evidence of the valid issuance thereof as the Rollover Shareholder may reasonably request.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE ROLLOVER SHAREHOLDER

The Rollover Shareholder hereby represents and warrants to the Buyer and Merger Sub as of the date hereof and as of the Closing Date (except where a representation or warranty expressly speaks as of a specific date, in which case as of such date) as follows:

Section 4.1 — Ownership of Shares

The Rollover Shareholder is the sole record and beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the Total Shares, free and clear of all Liens (other than restrictions under applicable federal and state securities laws and restrictions arising under this Agreement and the Voting Agreement). The Rollover Shareholder has good and valid title to the Total Shares. The Rollover Shareholder does not own, beneficially or of record, any shares of Common Stock or other equity securities of the Company (including any securities convertible into, or exercisable or exchangeable for, shares of Common Stock or other equity securities of the Company) other than the Total Shares and any equity awards (including stock options, restricted stock units, performance share units, or other equity-based awards) disclosed on Schedule A hereto. There are no outstanding options, warrants, calls, rights, commitments, or agreements of any character to which the Rollover Shareholder is a party or by which the Rollover Shareholder is bound requiring or providing for the issuance, delivery, sale, repurchase, or other transfer of any Total Shares by the Rollover Shareholder, other than this Agreement and the Voting Agreement.

Section 4.2 — Authority and Enforceability

The Rollover Shareholder has the legal capacity, full power, and authority to execute and deliver this Agreement, to perform the Rollover Shareholder's obligations hereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Rollover Shareholder and constitutes the valid and binding obligation of the Rollover Shareholder, enforceable against the Rollover Shareholder in accordance with its terms, subject to the Enforceability Exceptions.

Section 4.3 — No Conflicts

The execution, delivery, and performance of this Agreement by the Rollover Shareholder, and the consummation by the Rollover Shareholder of the transactions contemplated hereby, do not and will not: (i) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree of any Governmental Authority applicable to the Rollover Shareholder or any of the Rollover Shareholder's properties or assets (including the Total Shares); (ii) conflict with, result in a breach of, constitute a default under (with or without notice, lapse of time, or both), or give rise to any right of termination, cancellation, or acceleration under, or result in the creation of any Lien upon the Total Shares pursuant to, any contract, agreement, instrument, note, bond, mortgage, indenture, lease, license, permit, or other arrangement to which the Rollover Shareholder is a party or by which the Rollover Shareholder or any of the Rollover Shareholder's properties or assets are bound; or (iii) require any consent, approval, authorization, permit, order, or filing with or notification to any Governmental Authority, except, in the case of each of clauses (i), (ii), and (iii), as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the rollover contribution contemplated by this Agreement or the performance by the Rollover Shareholder of the Rollover Shareholder's obligations hereunder.

Section 4.4 — Investment Representations

(a) Accredited Investor. The Rollover Shareholder is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

(b) Investment Intent. The Equity Interest to be acquired by the Rollover Shareholder pursuant to this Agreement is being acquired for the Rollover Shareholder's own account, for investment purposes only, and not with a view to, or for sale in connection with, any distribution or resale thereof in violation of the Securities Act or any applicable state or foreign securities laws. The Rollover Shareholder does not have any present intention of selling, offering to sell, or otherwise disposing of or distributing the Equity Interest or any portion thereof, and the Rollover Shareholder does not have any contract, undertaking, agreement, or arrangement with any Person to sell, transfer, or grant participation rights to any Person with respect to any of the Equity Interest.

(c) Sophistication and Financial Capability. The Rollover Shareholder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Equity Interest and of making an informed investment decision with respect thereto. The Rollover Shareholder is capable of bearing the economic risk of the investment in the Equity Interest for an indefinite period of time, including the risk of a complete loss of such investment. The Rollover Shareholder has adequate means of providing for the Rollover Shareholder's current needs and personal contingencies and has no need for liquidity in the investment in the Equity Interest.

(d) Access to Information. The Rollover Shareholder has been afforded the opportunity to ask questions of, and receive answers from, the officers, directors, employees, agents, and representatives of the Buyer and its affiliates concerning the terms and conditions of the Equity Interest and the business, operations, financial condition, prospects, and affairs of the Buyer and its affiliates, and has been furnished with or has had access to such information as the Rollover Shareholder has deemed necessary or appropriate to evaluate the merits and risks of the investment contemplated by this Agreement. The Rollover Shareholder acknowledges that the Rollover Shareholder has been given the opportunity to review and has reviewed, to the extent the Rollover Shareholder has deemed necessary, the organizational documents of the issuing entity, the Merger Agreement, and any other documents and materials related to the transactions contemplated hereby.

(e) Restricted Securities. The Rollover Shareholder acknowledges and understands that the Equity Interest has not been registered under the Securities Act or under any state or foreign securities laws, and that the Equity Interest is being offered and sold in reliance upon exemptions from the registration requirements of the Securities Act and applicable state and foreign securities laws. The Rollover Shareholder further acknowledges and understands that the Equity Interest may not be offered, sold, pledged, assigned, or otherwise transferred except in compliance with the Securities Act and applicable state and foreign securities laws, and the Rollover Shareholder agrees that the Equity Interest shall bear a customary restrictive legend to such effect.

(f) No General Solicitation. The Rollover Shareholder is not acquiring the Equity Interest as a result of any form of general solicitation or general advertising (as such terms are used in Regulation D under the Securities Act), including any advertisement, article, notice, or other communication published in any newspaper, magazine, or similar medium or broadcast over television, radio, or the Internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.

Section 4.5 — Tax Matters

The Rollover Shareholder has had the opportunity to consult with the Rollover Shareholder's own tax advisors regarding the tax consequences of the transactions contemplated by this Agreement, including the contribution of the Rollover Shares in exchange for the Equity Interest. The Rollover Shareholder acknowledges that neither the Buyer nor any of its affiliates, general partners, limited partners, members, officers, directors, employees, agents, advisors, or representatives has made any representation, warranty, or guarantee regarding the tax treatment or tax consequences of the rollover contribution or any other transaction contemplated by this Agreement, including without limitation whether the contribution of the Rollover Shares in exchange for the Equity Interest will qualify as a tax-free exchange, a tax-free reorganization, or a tax-free contribution under Section 351, Section 368, Section 721, or any other provision of the Code. The Rollover Shareholder is relying solely upon the advice of the Rollover Shareholder's own tax advisors in connection with the transactions contemplated hereby and acknowledges that the tax consequences to the Rollover Shareholder may depend upon the Rollover Shareholder's particular tax situation.

Section 4.6 — Litigation

There is no pending or, to the knowledge of the Rollover Shareholder, threatened action, suit, claim, arbitration, investigation, or proceeding against or affecting the Rollover Shareholder before or by any Governmental Authority, court, arbitrator, or other tribunal that would reasonably be expected to (i) adversely affect the Rollover Shareholder's ability to perform the Rollover Shareholder's obligations under this Agreement, (ii) prevent or materially delay the consummation of the rollover contribution contemplated hereby, or (iii) otherwise impair the Rollover Shareholder's ability to consummate the transactions contemplated by this Agreement.

Section 4.7 — Brokers and Finders

No broker, finder, investment banker, financial advisor, or other intermediary is entitled to any brokerage, finder's, financial advisory, or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Rollover Shareholder, other than any such fees or commissions that are the sole responsibility and obligation of the Company or the Buyer under the Merger Agreement or otherwise.

ARTICLE V — REPRESENTATIONS AND WARRANTIES OF THE BUYER

The Buyer hereby represents and warrants to the Rollover Shareholder as of the date hereof and as of the Closing Date (except where a representation or warranty expressly speaks as of a specific date, in which case as of such date) as follows:

Section 5.1 — Organization and Good Standing

The Buyer is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Buyer has all requisite limited partnership power and authority to own, lease, and operate its properties and to carry on its business as presently conducted. The Buyer is duly qualified or licensed to do business and is in good standing in each jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties makes such qualification or licensing necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement.

Section 5.2 — Authority and Enforceability

The Buyer has the requisite limited partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by the Buyer and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited partnership action on the part of the Buyer (including any required approvals of the Buyer's general partner, limited partner advisory committee, or equivalent governing body). This Agreement has been duly executed and delivered by the Buyer and constitutes the valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, subject to the Enforceability Exceptions.

Section 5.3 — No Conflicts

The execution, delivery, and performance of this Agreement by the Buyer, and the consummation by the Buyer of the transactions contemplated hereby, do not and will not: (i) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree of any Governmental Authority applicable to the Buyer or any of its properties or assets; (ii) conflict with, result in a breach of, or constitute a default under (with or without notice, lapse of time, or both), or give rise to any right of termination, cancellation, or acceleration under, or result in the creation of any Lien upon any of the assets or properties of the Buyer pursuant to, the Buyer's certificate of limited partnership, limited partnership agreement, or other organizational documents, or any contract, agreement, instrument, note, bond, mortgage, indenture, lease, license, permit, or other arrangement to which the Buyer is a party or by which the Buyer or any of its properties or assets are bound; or (iii) require any consent, approval, authorization, permit, order, or filing with or notification to any Governmental Authority, except, in the case of each of clauses (i), (ii), and (iii), as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement or the performance by the Buyer of its obligations hereunder.

Section 5.4 — Issuance of Equity Interest

The Equity Interest, when issued and delivered to the Rollover Shareholder in accordance with the terms and conditions of this Agreement, will be duly authorized, validly issued, fully paid (to the extent applicable), and non-assessable (to the extent such concept is applicable to the type of Equity Interest), and shall be free and clear of all Liens (other than restrictions arising under applicable federal and state securities laws, restrictions set forth in the organizational documents of the issuing entity, and restrictions arising under this Agreement). The issuance of the Equity Interest to the Rollover Shareholder does not require any registration or qualification under the Securities Act or any applicable state securities laws (by reason of the availability of applicable exemptions therefrom).

ARTICLE VI — COVENANTS

Section 6.1 — Interim Restrictions on Transfer

From the date of this Agreement until the earlier of (x) the Effective Time or (y) the valid termination of this Agreement in accordance with Section 7.1:

(a) Transfer Restriction. The Rollover Shareholder shall not, directly or indirectly, (i) sell, transfer, assign, tender in any tender or exchange offer, pledge, hypothecate, encumber, grant any option, warrant, or right with respect to, or otherwise dispose of (whether by merger, consolidation, operation of law, or otherwise), any of the Rollover Shares (or any interest therein), (ii) deposit any of the Rollover Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Rollover Shares (other than the Voting Agreement), (iii) grant any proxy or power of attorney with respect to any of the Rollover Shares (other than as contemplated by the Voting Agreement), or (iv) enter into any contract, option, commitment, understanding, or arrangement (whether oral or written) to do any of the foregoing. Any purported transfer or other disposition of the Rollover Shares in violation of this Section 6.1(a) shall be null and void ab initio.

(b) Permitted Transfers. Notwithstanding the foregoing Section 6.1(a), the Rollover Shareholder may transfer Rollover Shares for bona fide estate planning purposes to a trust established for the benefit of the Rollover Shareholder or the Rollover Shareholder's immediate family members, or to an immediate family member of the Rollover Shareholder; provided that any such transfer shall be permitted only if, as a condition precedent thereto, the transferee executes and delivers to the Buyer a joinder agreement, in form and substance reasonably satisfactory to the Buyer, pursuant to which such transferee agrees in writing to be bound by the terms and conditions of this Agreement to the same extent as the Rollover Shareholder; and provided, further, that no such transfer shall relieve the Rollover Shareholder of the Rollover Shareholder's obligations hereunder.

(c) Preservation of Representations. The Rollover Shareholder shall not take any action, or fail to take any action, that would make any representation or warranty of the Rollover Shareholder contained herein untrue or incorrect in any material respect at any time during the period commencing on the date hereof and ending at the Effective Time.

Section 6.2 — Cooperation

(a) General Cooperation. The Rollover Shareholder shall use reasonable best efforts to cooperate with the Buyer and its representatives and take all actions reasonably requested by the Buyer to effectuate the rollover contribution contemplated by this Agreement, including executing and delivering any documents, instruments, conveyances, assignments, transfer forms, or other papers, and making any filings or applications with any Governmental Authority, as may be reasonably necessary or desirable to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Rollover Shareholder shall cooperate with the Buyer in connection with the preparation and filing of any regulatory filings or notices related to the transactions contemplated by this Agreement or the Merger Agreement.

(b) Tax Forms. The Rollover Shareholder shall deliver to the Buyer, promptly upon the Buyer's request (and in any event no later than five (5) business days prior to the Closing Date), a properly completed and duly executed IRS Form W-9 (or applicable IRS Form W-8, as the case may be) and any other tax forms, certifications, or documentation reasonably requested by the Buyer in connection with the transactions contemplated by this Agreement, including any forms necessary to establish an exemption from, or a reduced rate of, withholding Tax.

Section 6.3 — Further Assurances

From and after the date of this Agreement, each Party shall, at the reasonable request of the other Party, execute and deliver such additional documents, instruments, conveyances, and assurances, and take such further actions as may be reasonably required to carry out the provisions of this Agreement and to give effect to the transactions contemplated hereby. The obligations of the Parties under this Section 6.3 shall survive the Closing and the consummation of the transactions contemplated hereby.

Section 6.4 — Confidentiality

The Rollover Shareholder shall keep strictly confidential and shall not disclose to any Person the terms of this Agreement and the Equity Interest, including the Rollover Value, the Rollover Percentage, the terms and conditions of the Equity Interest, and any nonpublic information received by the Rollover Shareholder from the Buyer or its representatives in connection with the transactions contemplated hereby, except: (i) to the Rollover Shareholder's legal counsel, tax advisors, financial advisors, and other professional advisors (collectively, "Advisors"), in each case who have a need to know such information in connection with the transactions contemplated hereby and who are bound by obligations of confidentiality no less restrictive than those contained herein (and the Rollover Shareholder shall be responsible for any breach of such confidentiality obligations by the Rollover Shareholder's Advisors); (ii) as required by applicable law, regulation, legal process, or the order or directive of any Governmental Authority (including any subpoena, civil investigative demand, or other compulsory process); (iii) as required by the Merger Agreement or by the disclosure obligations of the Company or the Buyer under applicable securities laws, including the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; or (iv) with the prior written consent of the Buyer. In the event that the Rollover Shareholder is required by applicable law or legal process to disclose any confidential information, the Rollover Shareholder shall, to the extent legally permitted, provide the Buyer with prompt written notice of such requirement so that the Buyer may seek a protective order or other appropriate remedy.

Section 6.5 — Post-Closing Transfer Restrictions on Equity Interest

Following the Closing, the Equity Interest shall be subject to such transfer restrictions as are set forth in the organizational documents of the issuing entity (including any Amended and Restated Limited Partnership Agreement, Limited Liability Company Agreement, or Stockholders' Agreement, as applicable), as in effect from time to time. Without limiting the foregoing, the Rollover Shareholder shall not, directly or indirectly, sell, transfer, assign, pledge, hypothecate, encumber, or otherwise dispose of any portion of the Equity Interest for a period of [●] months following the Closing Date without the prior written consent of the Buyer, except (i) as expressly permitted under the organizational documents of the issuing entity, (ii) for transfers for bona fide estate planning purposes to a trust established for the benefit of the Rollover Shareholder or the Rollover Shareholder's immediate family members (provided that the transferee agrees in writing to be bound by the terms of the applicable organizational documents and this Section 6.5), or (iii) as required by applicable law. The provisions of this Section 6.5 shall survive the Closing and shall remain in full force and effect until the expiration of the applicable lock-up or transfer restriction period.

ARTICLE VII — TERMINATION

Section 7.1 — Termination Events

This Agreement shall terminate automatically, and none of the Parties shall have any further rights or obligations hereunder (except as expressly provided in Section 7.2), upon the earliest to occur of:

(a) the mutual written consent of all Parties to terminate this Agreement;

(b) the valid termination of the Merger Agreement in accordance with its terms, regardless of the reason for such termination; or

(c) the Effective Time, at which point the rollover contribution contemplated by Article II shall have been consummated, and the provisions of this Agreement shall survive the Effective Time only to the extent expressly provided herein.

Section 7.2 — Effect of Termination

In the event of termination of this Agreement pursuant to Section 7.1(a) or Section 7.1(b), this Agreement shall become void and shall be of no further force or effect, and no Party shall have any liability to any other Party hereunder or in connection herewith, except that:

(a) Article VIII (Miscellaneous) shall survive the termination of this Agreement and shall remain in full force and effect in accordance with its terms; and

(b) nothing in this Section 7.2 shall relieve any Party from liability for damages arising from or relating to any willful and material breach of this Agreement by such Party occurring prior to such termination. For purposes of this Section 7.2(b), a "willful and material breach" means a material breach of this Agreement that is the consequence of an act or omission by a Party with the actual knowledge that such act or omission constitutes a breach of this Agreement.

For the avoidance of doubt, in the event the rollover contribution is consummated at the Effective Time in accordance with Article II, the provisions of this Agreement that by their terms are intended to survive the Closing (including, without limitation, Article IV, Article V, Section 6.3, Section 6.4, Section 6.5, and Article VIII) shall survive the Effective Time in accordance with their respective terms.

ARTICLE VIII — MISCELLANEOUS

Section 8.1 — Notices

All notices, requests, claims, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand (with written confirmation of receipt), (b) one (1) business day after being sent by a nationally recognized overnight courier service (with written confirmation of receipt), (c) three (3) business days after being sent by certified or registered mail, return receipt requested, postage prepaid, or (d) when sent by email (with confirmation of transmission and no "bounce-back" or similar error message), to the Parties at the following addresses (or such other address as may be designated by any Party by notice to the other Parties in accordance with this Section 8.1):

If to the Buyer:

[●]

Attention: [●]

Email: [●]

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

[●]

Attention: [●]

Email: [●]

If to Merger Sub:

[●]

Attention: [●]

Email: [●]

If to the Rollover Shareholder:

Jonathan Hargrove [●]

Email: [●]

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

[●]

Attention: [●]

Email: [●]

Section 8.2 — Entire Agreement

This Agreement (including all Schedules and Appendices hereto), together with the Merger Agreement, the Voting Agreement, and the other documents and instruments referred to herein and therein, constitutes the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, warranties, commitments, proposals, offers, and other communications, whether oral or written, among the Parties with respect to such subject matter. No Party is relying on any representation or warranty not expressly set forth herein.

Section 8.3 — Amendments and Waivers

No amendment, modification, supplement, restatement, or waiver of any provision of this Agreement shall be effective unless in a written instrument duly executed by all Parties hereto specifically referencing this Agreement and the provision to be amended, modified, supplemented, restated, or waived. No waiver of any provision of this Agreement shall operate or be construed as a waiver of any other provision of this Agreement, whether or not similar, and no waiver of any provision on any one occasion shall constitute a continuing waiver or be construed as a waiver of such provision on any subsequent occasion. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.

Section 8.4 — Successors and Assigns

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. No Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Parties, and any attempted assignment, delegation, or transfer without such consent shall be null and void; provided, however, that the Buyer may, without the consent of the other Parties, assign any or all of its rights (but not its obligations) under this Agreement to any affiliate of the Buyer; provided, further, that no such assignment shall relieve the Buyer of its obligations hereunder.

Section 8.5 — Governing Law

This Agreement and all claims, disputes, controversies, and causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement or the negotiation, execution, performance, or enforcement hereof shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 8.6 — Jurisdiction and Venue

Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if neither such court accepts jurisdiction, the United States District Court for the District of Delaware) for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, suit, or proceeding: (a) any claim that such Party is not personally subject to the jurisdiction of the above-named courts for any reason; (b) any claim that such Party or such Party's property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts; and (c) any claim that (i) the action, suit, or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such action, suit, or proceeding is improper, or (iii) this Agreement or the subject matter hereof may not be enforced in or by such courts. Each Party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Each Party irrevocably consents to the service of process in any such action, suit, or proceeding by the delivery of such process in accordance with Section 8.1.

Section 8.7 — Waiver of Jury Trial

EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.7.

Section 8.8 — Specific Performance

The Parties acknowledge and agree that (a) irreparable harm would occur and the Parties would not have an adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and (b) monetary damages would be insufficient to compensate for such breach. Accordingly, each Party shall be entitled to seek 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 of this Agreement, in each case without the necessity of proving actual damages or posting any bond or other security (any requirement for which is hereby irrevocably waived by each Party). The right to specific performance and other equitable remedies under this Section 8.8 is in addition to, and not in limitation of, any other rights or remedies available to any Party at law or in equity.

Section 8.9 — Severability

If any provision of this Agreement, or the application thereof to any Person or any circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal, or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity, illegality, or unenforceability, nor shall such invalidity, illegality, or unenforceability affect the validity, legality, or enforceability of such provision, or the application thereof, in any other jurisdiction. The invalid, illegal, or unenforceable provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, while preserving the original intent of the Parties to the maximum extent possible.

Section 8.10 — Third-Party Beneficiaries

Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties hereto and their respective permitted successors and assigns) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, no creditor of any Party shall be deemed a third-party beneficiary of this Agreement.

Section 8.11 — Counterparts

This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile transmission, by electronic mail in portable document format (.pdf), or through an electronic signature platform (including Brightwater Software, Ashford Health IT, or any similar technology) shall be equally as effective as delivery of a manually executed counterpart of this Agreement. Each Party agrees that the electronic signatures appearing on this Agreement shall be treated, for all purposes, as original signatures and that the electronic document shall have the same binding force and effect as an original ink signature.

Section 8.12 — Expenses

Except as otherwise expressly provided in this Agreement or in the Merger Agreement, each Party shall bear its own costs, fees, and expenses (including attorneys' fees, accountants' fees, financial advisory fees, and other professional fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. For the avoidance of doubt, nothing in this Section 8.12 shall affect the allocation of transaction costs and expenses as between the Buyer, on the one hand, and the Company, on the other hand, under the Merger Agreement.

Section 8.13 — No Recourse

Notwithstanding anything to the contrary contained in this Agreement or any applicable law, this Agreement may only be enforced against, and any claim, suit, action, or proceeding based upon, arising out of, or related to this Agreement may only be brought against, the entities that are expressly identified as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. No former, current, or future equity holder, partner (whether general or limited), member, manager, stockholder, director, officer, employee, agent, advisor, representative, affiliate, or assignee of any Party (in each case, other than a Party hereto or a permitted successor or assignee thereof) shall have any liability for any obligations or liabilities of any Party under this Agreement or for any claim, suit, action, or proceeding based upon, arising out of, or related to this Agreement; provided, however, that nothing in this Section 8.13 shall limit or otherwise affect the liability of any Person for fraud committe

EXHIBIT F
TO AGREEMENT AND PLAN OF MERGER
FORM OF ROLLOVER AGREEMENT
This is a form of exhibit attached to the Agreement and Plan of Merger, dated as of [●], 20[●], among [●] (the "Target" or the "Company"), [●] (the "Merger Sub"), and [●] (the "Buyer" or "Parent") (the "Merger Agreement"). All bracketed fields are to be completed at the time of execution. This form is illustrative and shall be conformed to reflect the final terms negotiated by the parties at the time of signing.
ROLLOVER AGREEMENT
This Rollover Agreement (this "Agreement") is made and entered into as of [●], 20[●], by and among:
(1) [●], a Delaware limited partnership (the "Buyer" or "Parent");
(2) [●], a Delaware corporation and a wholly owned subsidiary of the Buyer ("Merger Sub"); and
(3) Jonathan Hargrove, an individual residing at [●] (the "Rollover Shareholder" or "Hargrove").
Each of the foregoing is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Buyer, Merger Sub, and [●], a public limited company incorporated under the laws of England and Wales (the "Target" or the "Company"), have entered into (or are concurrently entering into) that certain Agreement and Plan of Merger, dated as of [●], 20[●] (as the same may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), pursuant to which, among other things, Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of the Buyer;
WHEREAS, the Merger is structured as a reverse triangular merger under the Delaware General Corporation Law, pursuant to which Merger Sub will merge with and into the Company, and the separate corporate existence of Merger Sub will cease, with the Company continuing as the surviving corporation;
WHEREAS, the Rollover Shareholder is the record and beneficial owner of [●] shares of common stock of the Company (the "Total Shares"), representing the Rollover Shareholder's entire equity interest in the Company other than equity awards set forth on Schedule A hereto;
WHEREAS, in lieu of receiving the per-share merger consideration payable under the Merger Agreement for all of the Total Shares, the Rollover Shareholder desires to contribute a portion of the Total Shares (the "Rollover Shares") to the Buyer (or a designated affiliate of the Buyer) in exchange for equity interests in the Surviving Entity (as defined below), on the terms and subject to the conditions set forth herein;
WHEREAS, the Rollover Shareholder has elected to roll over [●]% of the Total Shares, representing [●] Rollover Shares, into equity interests of the post-closing entity on the terms described herein;
WHEREAS, the remaining [●] shares of Common Stock held by the Rollover Shareholder that are not Rollover Shares (the "Cashed-Out Shares") shall be converted at the Effective Time into the right to receive the per-share merger consideration payable pursuant to the Merger Agreement;
WHEREAS, this Agreement is being entered into as a condition to the willingness of the Buyer to enter into the Merger Agreement and to consummate the transactions contemplated thereby, and the Buyer would not have entered into the Merger Agreement without the execution and delivery of this Agreement by the Rollover Shareholder; and
WHEREAS, concurrently with the execution and delivery of this Agreement, the Rollover Shareholder is entering into that certain Voting and Support Agreement, dated as of the date hereof, by and among the Buyer and the Rollover Shareholder (the "Voting Agreement"), pursuant to which, among other things, the Rollover Shareholder has agreed to vote the Total Shares in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Agreement" means this Rollover Agreement, including all Schedules and Appendices hereto, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Buyer" or "Parent" means [●], a Delaware limited partnership.
"Cashed-Out Shares" means the shares of Common Stock held by the Rollover Shareholder that are not Rollover Shares. The Cashed-Out Shares shall be entitled to receive the Per-Share Merger Consideration at the Effective Time in accordance with the terms of the Merger Agreement.
"Closing" means the closing of the Merger as defined in, and in accordance with, the Merger Agreement.
"Closing Date" means the date on which the Closing occurs.
"Common Stock" means the common stock of the Company, par value $[●] per share.
"Company" or "Target" means [●], a public limited company incorporated under the laws of England and Wales.
"Effective Time" means the effective time of the Merger as set forth in the Certificate of Merger filed with the Secretary of State of the State of Delaware (or such other applicable governmental office) in connection with the consummation of the Merger, as determined in accordance with the Merger Agreement.
"Enforceability Exceptions" means the exceptions to enforceability arising from applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and other similar laws of general applicability affecting or relating to creditors' rights generally, and general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity).
"Equity Interest" means the limited partnership interest, membership interest, or other equity interest received by the Rollover Shareholder in the Surviving Entity, the Buyer, or a designated affiliate of the Buyer in exchange for the Rollover Shares, having the terms and conditions set forth in Schedule B hereto and in the organizational documents of the issuing entity.
"Governmental Authority" means any federal, state, provincial, local, municipal, foreign, or other government or governmental or quasi-governmental authority of any nature, including any governmental agency, branch, department, official, entity, or instrumentality, and any court, arbitrator, or other tribunal.
"Lien" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, option, right of first refusal, preemptive right, or other restriction or limitation of any kind, whether arising by contract, operation of law, or otherwise.
"Merger" means the merger of Merger Sub with and into the Company pursuant to the Merger Agreement, with the Company surviving as the surviving corporation.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of [●], 20[●], by and among the Company, Merger Sub, and the Buyer, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Merger Consideration" means $[●] per share in cash (the "Per-Share Merger Consideration"), without interest, as set forth in the Merger Agreement, less any applicable withholding Taxes.
"Merger Sub" means [●], a Delaware corporation and a wholly owned subsidiary of the Buyer.
"Per-Share Merger Consideration" has the meaning set forth in the definition of "Merger Consideration."
"Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, unincorporated organization, association, organization, Governmental Authority, or other entity.
"Rollover Consideration" means the Equity Interest issued to the Rollover Shareholder in exchange for the Rollover Shares, having an agreed value equal to the Rollover Value.
"Rollover Percentage" means [●]% of the Total Shares.
"Rollover Shares" means the number of shares of Common Stock equal to the Rollover Percentage of the Total Shares, being [●] shares of Common Stock.
"Rollover Value" means the aggregate value of the Rollover Shares, calculated as the product of (i) the number of Rollover Shares multiplied by (ii) the Per-Share Merger Consideration.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Surviving Entity" means the Company, as the surviving corporation in the Merger.
"Tax" or "Taxes" means any and all federal, state, provincial, local, municipal, foreign, and other taxes of any kind, including income, franchise, profits, gross receipts, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, social security, withholding, employment, unemployment, disability, value added, alternative or add-on minimum, estimated, and other taxes, charges, fees, levies, duties, customs, tariffs, imposts, assessments, obligations, and similar charges imposed by any Governmental Authority, together with all interest, penalties, additions to tax, and additional amounts imposed with respect thereto.
"Total Shares" means [●] shares of Common Stock owned of record and beneficially by the Rollover Shareholder as of the date of this Agreement.
"Voting Agreement" means the Voting and Support Agreement, dated as of the date hereof, by and among the Buyer and the Rollover Shareholder, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
Section 1.2 — Terms Defined in the Merger Agreement
Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement, as in effect on the date hereof (or, if the Merger Agreement is amended after the date hereof, as in effect as so amended, unless the context requires otherwise).
Section 1.3 — Interpretation
Unless the context of this Agreement otherwise requires: (a) references to "Sections," "Articles," "Schedules," and "Appendices" are to the Sections, Articles, Schedules, and Appendices of this Agreement; (b) the headings and captions in this Agreement are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement; (c) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (d) words importing the singular shall include the plural, and vice versa; (e) words importing one gender shall include all other genders; (f) references to "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (g) references to any statute shall be deemed to refer to such statute as amended from time to time, and to any rules, regulations, and interpretations promulgated thereunder, unless the context requires otherwise; (h) references to "days" shall mean calendar days, unless otherwise specified as "business days"; (i) references to "$" or "dollars" shall mean United States dollars; and (j) 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 provisions of this Agreement.
ARTICLE II — ROLLOVER CONTRIBUTION
Section 2.1 — Rollover Commitment
At or immediately prior to the Effective Time, and subject to the terms and conditions of this Agreement (including the satisfaction or waiver of the conditions set forth in Article III):
(a) Contribution of Rollover Shares. The Rollover Shareholder shall contribute, assign, transfer, convey, and deliver to the Buyer (or a designated affiliate of the Buyer, as notified in writing by the Buyer to the Rollover Shareholder no later than five (5) business days prior to the Closing Date) all of the Rollover Shares, free and clear of all Liens (other than restrictions arising under applicable securities laws and restrictions arising under this Agreement). Upon the consummation of such contribution, the Rollover Shareholder shall cease to have any right, title, or interest in or to the Rollover Shares, and the Buyer (or its designated affiliate) shall become the sole record and beneficial owner thereof.
(b) Issuance of Rollover Consideration. In exchange for the contribution of the Rollover Shares described in Section 2.1(a), the Buyer (or its designated affiliate) shall issue to the Rollover Shareholder the Rollover Consideration, which shall consist of the Equity Interest having the terms and conditions described in Schedule B hereto and in the organizational documents of the issuing entity. The Equity Interest shall have an agreed value, for purposes of this Agreement, equal to the Rollover Value.
The Parties acknowledge and agree that the exchange contemplated by this Section 2.1 is intended to occur contemporaneously with, but immediately prior to, the closing of the Merger. The Rollover Shares shall be excluded from the shares of Common Stock that are converted into the right to receive the Per-Share Merger Consideration at the Effective Time pursuant to the Merger Agreement, and the Rollover Shares shall instead be treated as provided in this Agreement.
Section 2.2 — Rollover Value Calculation
The Rollover Value shall be equal to the product of (i) the number of Rollover Shares multiplied by (ii) the Per-Share Merger Consideration. The Equity Interest issued to the Rollover Shareholder pursuant to Section 2.1(b) shall be valued, for all purposes of this Agreement, at an amount equal to the Rollover Value. For the avoidance of doubt, the Rollover Value is calculated as follows:
[●] Rollover Shares × $[●] Per-Share Merger Consideration = $[●] Rollover Value
The Parties acknowledge and agree that the foregoing valuation of the Equity Interest is being established by mutual agreement for purposes of this Agreement and the transactions contemplated hereby, and that such valuation shall not constitute a representation or warranty by any Party as to the fair market value of the Equity Interest or the Rollover Shares at any time following the Closing.
Section 2.3 — Treatment of Cashed-Out Shares
The Cashed-Out Shares (being [●] shares of Common Stock) shall be treated in accordance with the terms and conditions of the Merger Agreement. At the Effective Time, each Cashed-Out Share shall be converted into the right to receive the Per-Share Merger Consideration in cash, without interest, subject to any applicable withholding of Taxes as provided in the Merger Agreement and Section 2.5 of this Agreement. The Rollover Shareholder shall be entitled to receive the aggregate Per-Share Merger Consideration payable in respect of the Cashed-Out Shares in accordance with the payment and exchange procedures set forth in the Merger Agreement, including through the exchange agent appointed thereunder.
Section 2.4 — Delivery Mechanics
(a) Delivery of Rollover Shares. No later than two (2) business days prior to the Closing Date (or at such other time as the Buyer and the Rollover Shareholder may mutually agree), the Rollover Shareholder shall deliver or cause to be delivered to the Buyer (or its designated affiliate, as applicable) stock certificates representing the Rollover Shares (if the Rollover Shares are evidenced by certificates), duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, together with any other documents reasonably requested by the Buyer to effect the valid transfer of the Rollover Shares. If the Rollover Shares are held in book-entry form, the Rollover Shareholder shall deliver or cause to be delivered to the Buyer evidence of book-entry transfer in form and substance reasonably satisfactory to the Buyer, together with such transfer instructions and authorizations as the Buyer may reasonably require.
(b) Shares Held in Street Name. To the extent that any Rollover Shares are held in "street name" by or through a broker, dealer, bank, nominee, or other intermediary, the Rollover Shareholder shall take all actions necessary and within the Rollover Shareholder's control to cause such Rollover Shares to be transferred to an account designated by the Buyer (or its designated affiliate), including by delivering to such broker, dealer, bank, nominee, or other intermediary irrevocable instructions to transfer such Rollover Shares, in each case in form and substance reasonably satisfactory to the Buyer.
(c) Delivery of Equity Interest. At the Effective Time (or as promptly as practicable thereafter), the Buyer (or its designated affiliate) shall deliver or cause to be delivered to the Rollover Shareholder evidence of the issuance of the Equity Interest in such form as is customary for the applicable type of equity interest, which may include, without limitation, a certificate evidencing a limited partnership interest, a counterpart signature page to the applicable organizational documents reflecting the Rollover Shareholder's admission as a partner or member (as applicable), an entry on the books and records of the issuing entity, or such other documentation as is customary and appropriate.
Section 2.5 — Withholding
The Buyer, Merger Sub, the Surviving Entity, and each of their respective affiliates shall be entitled to deduct and withhold from any amounts otherwise payable, deliverable, or issuable pursuant to this Agreement such amounts as may be required to be deducted and withheld under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of federal, state, local, or foreign Tax law. Without limiting the generality of the foregoing, any such deduction and withholding may include amounts required to be withheld pursuant to Sections 1441, 1442, 1445 (relating to the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA")), 1446, or 3406 (relating to backup withholding) of the Code, or any analogous provision of state, local, or non-U.S. Tax law. To the extent that amounts are so deducted and withheld, and are properly remitted to the applicable Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid or issued, as applicable, to the Rollover Shareholder in respect of whom such deduction and withholding was made. Prior to making any such deduction or withholding (other than any deduction or withholding required under Section 3406 of the Code), the Buyer shall use commercially reasonable efforts to provide the Rollover Shareholder with reasonable advance notice of any intended withholding and shall cooperate in good faith with the Rollover Shareholder to reduce or eliminate any such withholding to the extent permitted by applicable law.
Section 2.6 — Adjustments
If, between the date of this Agreement and the Effective Time, the outstanding shares of Common Stock shall have been changed into a different number or class of shares by reason of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into shares of Common Stock), subdivision, reclassification, recapitalization, combination, exchange of shares, or other similar transaction, then the number of Rollover Shares and the Rollover Value shall be equitably and proportionately adjusted to reflect such change, and all references in this Agreement to the Rollover Shares and the Rollover Value shall be deemed to refer to the Rollover Shares and the Rollover Value as so adjusted. Any such adjustment shall be determined by the Buyer in good faith and shall be reasonably satisfactory to the Rollover Shareholder.
ARTICLE III — CONDITIONS TO ROLLOVER
Section 3.1 — Conditions to Obligations of All Parties
The obligations of each Party to consummate the rollover contribution contemplated by Section 2.1 shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver by the applicable Party) of each of the following conditions at or prior to the Effective Time:
(a) Merger Agreement Conditions. All conditions precedent to the closing of the Merger set forth in the Merger Agreement shall have been satisfied or waived in accordance with the terms of the Merger Agreement (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).
(b) No Termination. The Merger Agreement shall not have been terminated in accordance with its terms prior to the Effective Time.
(c) No Legal Impediment. No Governmental Authority of competent jurisdiction shall have issued any order, injunction, decree, judgment, ruling, or other legal restraint that is in effect and that prohibits, enjoins, restrains, or makes illegal the consummation of the rollover contribution contemplated by this Agreement.
Section 3.2 — Conditions to Obligations of the Buyer
The obligation of the Buyer to consummate the rollover contribution and to issue the Rollover Consideration shall be further subject to the satisfaction (or waiver by the Buyer) of each of the following additional conditions:
(a) Accuracy of Representations and Warranties. The representations and warranties of the Rollover Shareholder set forth in Article IV shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties expressly speak as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specified date).
(b) Performance of Covenants. The Rollover Shareholder shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by the Rollover Shareholder at or prior to the Closing.
(c) Delivery of Rollover Shares. The Rollover Shareholder shall have delivered or caused to be delivered the Rollover Shares and all other deliverables specified in Section 2.4(a) and Section 2.4(b), as applicable, in form and substance reasonably satisfactory to the Buyer.
Section 3.3 — Conditions to Obligations of the Rollover Shareholder
The obligation of the Rollover Shareholder to consummate the rollover contribution and to deliver the Rollover Shares shall be further subject to the satisfaction (or waiver by the Rollover Shareholder) of each of the following additional conditions:
(a) Accuracy of Representations and Warranties. The representations and warranties of the Buyer set forth in Article V shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties expressly speak as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specified date).
(b) Performance of Covenants. The Buyer shall have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by the Buyer at or prior to the Closing.
(c) Delivery of Equity Interest. The Buyer (or its designated affiliate) shall have delivered or caused to be delivered to the Rollover Shareholder the Equity Interest in accordance with Section 2.4(c), together with such evidence of the valid issuance thereof as the Rollover Shareholder may reasonably request.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE ROLLOVER SHAREHOLDER
The Rollover Shareholder hereby represents and warrants to the Buyer and Merger Sub as of the date hereof and as of the Closing Date (except where a representation or warranty expressly speaks as of a specific date, in which case as of such date) as follows:
Section 4.1 — Ownership of Shares
The Rollover Shareholder is the sole record and beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the Total Shares, free and clear of all Liens (other than restrictions under applicable federal and state securities laws and restrictions arising under this Agreement and the Voting Agreement). The Rollover Shareholder has good and valid title to the Total Shares. The Rollover Shareholder does not own, beneficially or of record, any shares of Common Stock or other equity securities of the Company (including any securities convertible into, or exercisable or exchangeable for, shares of Common Stock or other equity securities of the Company) other than the Total Shares and any equity awards (including stock options, restricted stock units, performance share units, or other equity-based awards) disclosed on Schedule A hereto. There are no outstanding options, warrants, calls, rights, commitments, or agreements of any character to which the Rollover Shareholder is a party or by which the Rollover Shareholder is bound requiring or providing for the issuance, delivery, sale, repurchase, or other transfer of any Total Shares by the Rollover Shareholder, other than this Agreement and the Voting Agreement.
Section 4.2 — Authority and Enforceability
The Rollover Shareholder has the legal capacity, full power, and authority to execute and deliver this Agreement, to perform the Rollover Shareholder's obligations hereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Rollover Shareholder and constitutes the valid and binding obligation of the Rollover Shareholder, enforceable against the Rollover Shareholder in accordance with its terms, subject to the Enforceability Exceptions.
Section 4.3 — No Conflicts
The execution, delivery, and performance of this Agreement by the Rollover Shareholder, and the consummation by the Rollover Shareholder of the transactions contemplated hereby, do not and will not: (i) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree of any Governmental Authority applicable to the Rollover Shareholder or any of the Rollover Shareholder's properties or assets (including the Total Shares); (ii) conflict with, result in a breach of, constitute a default under (with or without notice, lapse of time, or both), or give rise to any right of termination, cancellation, or acceleration under, or result in the creation of any Lien upon the Total Shares pursuant to, any contract, agreement, instrument, note, bond, mortgage, indenture, lease, license, permit, or other arrangement to which the Rollover Shareholder is a party or by which the Rollover Shareholder or any of the Rollover Shareholder's properties or assets are bound; or (iii) require any consent, approval, authorization, permit, order, or filing with or notification to any Governmental Authority, except, in the case of each of clauses (i), (ii), and (iii), as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the rollover contribution contemplated by this Agreement or the performance by the Rollover Shareholder of the Rollover Shareholder's obligations hereunder.
Section 4.4 — Investment Representations
(a) Accredited Investor. The Rollover Shareholder is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(b) Investment Intent. The Equity Interest to be acquired by the Rollover Shareholder pursuant to this Agreement is being acquired for the Rollover Shareholder's own account, for investment purposes only, and not with a view to, or for sale in connection with, any distribution or resale thereof in violation of the Securities Act or any applicable state or foreign securities laws. The Rollover Shareholder does not have any present intention of selling, offering to sell, or otherwise disposing of or distributing the Equity Interest or any portion thereof, and the Rollover Shareholder does not have any contract, undertaking, agreement, or arrangement with any Person to sell, transfer, or grant participation rights to any Person with respect to any of the Equity Interest.
(c) Sophistication and Financial Capability. The Rollover Shareholder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Equity Interest and of making an informed investment decision with respect thereto. The Rollover Shareholder is capable of bearing the economic risk of the investment in the Equity Interest for an indefinite period of time, including the risk of a complete loss of such investment. The Rollover Shareholder has adequate means of providing for the Rollover Shareholder's current needs and personal contingencies and has no need for liquidity in the investment in the Equity Interest.
(d) Access to Information. The Rollover Shareholder has been afforded the opportunity to ask questions of, and receive answers from, the officers, directors, employees, agents, and representatives of the Buyer and its affiliates concerning the terms and conditions of the Equity Interest and the business, operations, financial condition, prospects, and affairs of the Buyer and its affiliates, and has been furnished with or has had access to such information as the Rollover Shareholder has deemed necessary or appropriate to evaluate the merits and risks of the investment contemplated by this Agreement. The Rollover Shareholder acknowledges that the Rollover Shareholder has been given the opportunity to review and has reviewed, to the extent the Rollover Shareholder has deemed necessary, the organizational documents of the issuing entity, the Merger Agreement, and any other documents and materials related to the transactions contemplated hereby.
(e) Restricted Securities. The Rollover Shareholder acknowledges and understands that the Equity Interest has not been registered under the Securities Act or under any state or foreign securities laws, and that the Equity Interest is being offered and sold in reliance upon exemptions from the registration requirements of the Securities Act and applicable state and foreign securities laws. The Rollover Shareholder further acknowledges and understands that the Equity Interest may not be offered, sold, pledged, assigned, or otherwise transferred except in compliance with the Securities Act and applicable state and foreign securities laws, and the Rollover Shareholder agrees that the Equity Interest shall bear a customary restrictive legend to such effect.
(f) No General Solicitation. The Rollover Shareholder is not acquiring the Equity Interest as a result of any form of general solicitation or general advertising (as such terms are used in Regulation D under the Securities Act), including any advertisement, article, notice, or other communication published in any newspaper, magazine, or similar medium or broadcast over television, radio, or the Internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
Section 4.5 — Tax Matters
The Rollover Shareholder has had the opportunity to consult with the Rollover Shareholder's own tax advisors regarding the tax consequences of the transactions contemplated by this Agreement, including the contribution of the Rollover Shares in exchange for the Equity Interest. The Rollover Shareholder acknowledges that neither the Buyer nor any of its affiliates, general partners, limited partners, members, officers, directors, employees, agents, advisors, or representatives has made any representation, warranty, or guarantee regarding the tax treatment or tax consequences of the rollover contribution or any other transaction contemplated by this Agreement, including without limitation whether the contribution of the Rollover Shares in exchange for the Equity Interest will qualify as a tax-free exchange, a tax-free reorganization, or a tax-free contribution under Section 351, Section 368, Section 721, or any other provision of the Code. The Rollover Shareholder is relying solely upon the advice of the Rollover Shareholder's own tax advisors in connection with the transactions contemplated hereby and acknowledges that the tax consequences to the Rollover Shareholder may depend upon the Rollover Shareholder's particular tax situation.
Section 4.6 — Litigation
There is no pending or, to the knowledge of the Rollover Shareholder, threatened action, suit, claim, arbitration, investigation, or proceeding against or affecting the Rollover Shareholder before or by any Governmental Authority, court, arbitrator, or other tribunal that would reasonably be expected to (i) adversely affect the Rollover Shareholder's ability to perform the Rollover Shareholder's obligations under this Agreement, (ii) prevent or materially delay the consummation of the rollover contribution contemplated hereby, or (iii) otherwise impair the Rollover Shareholder's ability to consummate the transactions contemplated by this Agreement.
Section 4.7 — Brokers and Finders
No broker, finder, investment banker, financial advisor, or other intermediary is entitled to any brokerage, finder's, financial advisory, or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Rollover Shareholder, other than any such fees or commissions that are the sole responsibility and obligation of the Company or the Buyer under the Merger Agreement or otherwise.
ARTICLE V — REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Rollover Shareholder as of the date hereof and as of the Closing Date (except where a representation or warranty expressly speaks as of a specific date, in which case as of such date) as follows:
Section 5.1 — Organization and Good Standing
The Buyer is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Buyer has all requisite limited partnership power and authority to own, lease, and operate its properties and to carry on its business as presently conducted. The Buyer is duly qualified or licensed to do business and is in good standing in each jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties makes such qualification or licensing necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement.
Section 5.2 — Authority and Enforceability
The Buyer has the requisite limited partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by the Buyer and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited partnership action on the part of the Buyer (including any required approvals of the Buyer's general partner, limited partner advisory committee, or equivalent governing body). This Agreement has been duly executed and delivered by the Buyer and constitutes the valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, subject to the Enforceability Exceptions.
Section 5.3 — No Conflicts
The execution, delivery, and performance of this Agreement by the Buyer, and the consummation by the Buyer of the transactions contemplated hereby, do not and will not: (i) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree of any Governmental Authority applicable to the Buyer or any of its properties or assets; (ii) conflict with, result in a breach of, or constitute a default under (with or without notice, lapse of time, or both), or give rise to any right of termination, cancellation, or acceleration under, or result in the creation of any Lien upon any of the assets or properties of the Buyer pursuant to, the Buyer's certificate of limited partnership, limited partnership agreement, or other organizational documents, or any contract, agreement, instrument, note, bond, mortgage, indenture, lease, license, permit, or other arrangement to which the Buyer is a party or by which the Buyer or any of its properties or assets are bound; or (iii) require any consent, approval, authorization, permit, order, or filing with or notification to any Governmental Authority, except, in the case of each of clauses (i), (ii), and (iii), as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement or the performance by the Buyer of its obligations hereunder.
Section 5.4 — Issuance of Equity Interest
The Equity Interest, when issued and delivered to the Rollover Shareholder in accordance with the terms and conditions of this Agreement, will be duly authorized, validly issued, fully paid (to the extent applicable), and non-assessable (to the extent such concept is applicable to the type of Equity Interest), and shall be free and clear of all Liens (other than restrictions arising under applicable federal and state securities laws, restrictions set forth in the organizational documents of the issuing entity, and restrictions arising under this Agreement). The issuance of the Equity Interest to the Rollover Shareholder does not require any registration or qualification under the Securities Act or any applicable state securities laws (by reason of the availability of applicable exemptions therefrom).
ARTICLE VI — COVENANTS
Section 6.1 — Interim Restrictions on Transfer
From the date of this Agreement until the earlier of (x) the Effective Time or (y) the valid termination of this Agreement in accordance with Section 7.1:
(a) Transfer Restriction. The Rollover Shareholder shall not, directly or indirectly, (i) sell, transfer, assign, tender in any tender or exchange offer, pledge, hypothecate, encumber, grant any option, warrant, or right with respect to, or otherwise dispose of (whether by merger, consolidation, operation of law, or otherwise), any of the Rollover Shares (or any interest therein), (ii) deposit any of the Rollover Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Rollover Shares (other than the Voting Agreement), (iii) grant any proxy or power of attorney with respect to any of the Rollover Shares (other than as contemplated by the Voting Agreement), or (iv) enter into any contract, option, commitment, understanding, or arrangement (whether oral or written) to do any of the foregoing. Any purported transfer or other disposition of the Rollover Shares in violation of this Section 6.1(a) shall be null and void ab initio.
(b) Permitted Transfers. Notwithstanding the foregoing Section 6.1(a), the Rollover Shareholder may transfer Rollover Shares for bona fide estate planning purposes to a trust established for the benefit of the Rollover Shareholder or the Rollover Shareholder's immediate family members, or to an immediate family member of the Rollover Shareholder; provided that any such transfer shall be permitted only if, as a condition precedent thereto, the transferee executes and delivers to the Buyer a joinder agreement, in form and substance reasonably satisfactory to the Buyer, pursuant to which such transferee agrees in writing to be bound by the terms and conditions of this Agreement to the same extent as the Rollover Shareholder; and provided, further, that no such transfer shall relieve the Rollover Shareholder of the Rollover Shareholder's obligations hereunder.
(c) Preservation of Representations. The Rollover Shareholder shall not take any action, or fail to take any action, that would make any representation or warranty of the Rollover Shareholder contained herein untrue or incorrect in any material respect at any time during the period commencing on the date hereof and ending at the Effective Time.
Section 6.2 — Cooperation
(a) General Cooperation. The Rollover Shareholder shall use reasonable best efforts to cooperate with the Buyer and its representatives and take all actions reasonably requested by the Buyer to effectuate the rollover contribution contemplated by this Agreement, including executing and delivering any documents, instruments, conveyances, assignments, transfer forms, or other papers, and making any filings or applications with any Governmental Authority, as may be reasonably necessary or desirable to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Rollover Shareholder shall cooperate with the Buyer in connection with the preparation and filing of any regulatory filings or notices related to the transactions contemplated by this Agreement or the Merger Agreement.
(b) Tax Forms. The Rollover Shareholder shall deliver to the Buyer, promptly upon the Buyer's request (and in any event no later than five (5) business days prior to the Closing Date), a properly completed and duly executed IRS Form W-9 (or applicable IRS Form W-8, as the case may be) and any other tax forms, certifications, or documentation reasonably requested by the Buyer in connection with the transactions contemplated by this Agreement, including any forms necessary to establish an exemption from, or a reduced rate of, withholding Tax.
Section 6.3 — Further Assurances
From and after the date of this Agreement, each Party shall, at the reasonable request of the other Party, execute and deliver such additional documents, instruments, conveyances, and assurances, and take such further actions as may be reasonably required to carry out the provisions of this Agreement and to give effect to the transactions contemplated hereby. The obligations of the Parties under this Section 6.3 shall survive the Closing and the consummation of the transactions contemplated hereby.
Section 6.4 — Confidentiality
The Rollover Shareholder shall keep strictly confidential and shall not disclose to any Person the terms of this Agreement and the Equity Interest, including the Rollover Value, the Rollover Percentage, the terms and conditions of the Equity Interest, and any nonpublic information received by the Rollover Shareholder from the Buyer or its representatives in connection with the transactions contemplated hereby, except: (i) to the Rollover Shareholder's legal counsel, tax advisors, financial advisors, and other professional advisors (collectively, "Advisors"), in each case who have a need to know such information in connection with the transactions contemplated hereby and who are bound by obligations of confidentiality no less restrictive than those contained herein (and the Rollover Shareholder shall be responsible for any breach of such confidentiality obligations by the Rollover Shareholder's Advisors); (ii) as required by applicable law, regulation, legal process, or the order or directive of any Governmental Authority (including any subpoena, civil investigative demand, or other compulsory process); (iii) as required by the Merger Agreement or by the disclosure obligations of the Company or the Buyer under applicable securities laws, including the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; or (iv) with the prior written consent of the Buyer. In the event that the Rollover Shareholder is required by applicable law or legal process to disclose any confidential information, the Rollover Shareholder shall, to the extent legally permitted, provide the Buyer with prompt written notice of such requirement so that the Buyer may seek a protective order or other appropriate remedy.
Section 6.5 — Post-Closing Transfer Restrictions on Equity Interest
Following the Closing, the Equity Interest shall be subject to such transfer restrictions as are set forth in the organizational documents of the issuing entity (including any Amended and Restated Limited Partnership Agreement, Limited Liability Company Agreement, or Stockholders' Agreement, as applicable), as in effect from time to time. Without limiting the foregoing, the Rollover Shareholder shall not, directly or indirectly, sell, transfer, assign, pledge, hypothecate, encumber, or otherwise dispose of any portion of the Equity Interest for a period of [●] months following the Closing Date without the prior written consent of the Buyer, except (i) as expressly permitted under the organizational documents of the issuing entity, (ii) for transfers for bona fide estate planning purposes to a trust established for the benefit of the Rollover Shareholder or the Rollover Shareholder's immediate family members (provided that the transferee agrees in writing to be bound by the terms of the applicable organizational documents and this Section 6.5), or (iii) as required by applicable law. The provisions of this Section 6.5 shall survive the Closing and shall remain in full force and effect until the expiration of the applicable lock-up or transfer restriction period.
ARTICLE VII — TERMINATION
Section 7.1 — Termination Events
This Agreement shall terminate automatically, and none of the Parties shall have any further rights or obligations hereunder (except as expressly provided in Section 7.2), upon the earliest to occur of:
(a) the mutual written consent of all Parties to terminate this Agreement;
(b) the valid termination of the Merger Agreement in accordance with its terms, regardless of the reason for such termination; or
(c) the Effective Time, at which point the rollover contribution contemplated by Article II shall have been consummated, and the provisions of this Agreement shall survive the Effective Time only to the extent expressly provided herein.
Section 7.2 — Effect of Termination
In the event of termination of this Agreement pursuant to Section 7.1(a) or Section 7.1(b), this Agreement shall become void and shall be of no further force or effect, and no Party shall have any liability to any other Party hereunder or in connection herewith, except that:
(a) Article VIII (Miscellaneous) shall survive the termination of this Agreement and shall remain in full force and effect in accordance with its terms; and
(b) nothing in this Section 7.2 shall relieve any Party from liability for damages arising from or relating to any willful and material breach of this Agreement by such Party occurring prior to such termination. For purposes of this Section 7.2(b), a "willful and material breach" means a material breach of this Agreement that is the consequence of an act or omission by a Party with the actual knowledge that such act or omission constitutes a breach of this Agreement.
For the avoidance of doubt, in the event the rollover contribution is consummated at the Effective Time in accordance with Article II, the provisions of this Agreement that by their terms are intended to survive the Closing (including, without limitation, Article IV, Article V, Section 6.3, Section 6.4, Section 6.5, and Article VIII) shall survive the Effective Time in accordance with their respective terms.
ARTICLE VIII — MISCELLANEOUS
Section 8.1 — Notices
All notices, requests, claims, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand (with written confirmation of receipt), (b) one (1) business day after being sent by a nationally recognized overnight courier service (with written confirmation of receipt), (c) three (3) business days after being sent by certified or registered mail, return receipt requested, postage prepaid, or (d) when sent by email (with confirmation of transmission and no "bounce-back" or similar error message), to the Parties at the following addresses (or such other address as may be designated by any Party by notice to the other Parties in accordance with this Section 8.1):
If to the Buyer:
[●]
Attention: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
[●]
Attention: [●]
Email: [●]
If to Merger Sub:
[●]
Attention: [●]
Email: [●]
If to the Rollover Shareholder:
Jonathan Hargrove [●]
Email: [●]
with a copy (which shall not constitute notice) to:
[●]
Attention: [●]
Email: [●]
Section 8.2 — Entire Agreement
This Agreement (including all Schedules and Appendices hereto), together with the Merger Agreement, the Voting Agreement, and the other documents and instruments referred to herein and therein, constitutes the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, warranties, commitments, proposals, offers, and other communications, whether oral or written, among the Parties with respect to such subject matter. No Party is relying on any representation or warranty not expressly set forth herein.
Section 8.3 — Amendments and Waivers
No amendment, modification, supplement, restatement, or waiver of any provision of this Agreement shall be effective unless in a written instrument duly executed by all Parties hereto specifically referencing this Agreement and the provision to be amended, modified, supplemented, restated, or waived. No waiver of any provision of this Agreement shall operate or be construed as a waiver of any other provision of this Agreement, whether or not similar, and no waiver of any provision on any one occasion shall constitute a continuing waiver or be construed as a waiver of such provision on any subsequent occasion. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.
Section 8.4 — Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. No Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Parties, and any attempted assignment, delegation, or transfer without such consent shall be null and void; provided, however, that the Buyer may, without the consent of the other Parties, assign any or all of its rights (but not its obligations) under this Agreement to any affiliate of the Buyer; provided, further, that no such assignment shall relieve the Buyer of its obligations hereunder.
Section 8.5 — Governing Law
This Agreement and all claims, disputes, controversies, and causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement or the negotiation, execution, performance, or enforcement hereof shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.6 — Jurisdiction and Venue
Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if neither such court accepts jurisdiction, the United States District Court for the District of Delaware) for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, suit, or proceeding: (a) any claim that such Party is not personally subject to the jurisdiction of the above-named courts for any reason; (b) any claim that such Party or such Party's property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts; and (c) any claim that (i) the action, suit, or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such action, suit, or proceeding is improper, or (iii) this Agreement or the subject matter hereof may not be enforced in or by such courts. Each Party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Each Party irrevocably consents to the service of process in any such action, suit, or proceeding by the delivery of such process in accordance with Section 8.1.
Section 8.7 — Waiver of Jury Trial
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.7.
Section 8.8 — Specific Performance
The Parties acknowledge and agree that (a) irreparable harm would occur and the Parties would not have an adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and (b) monetary damages would be insufficient to compensate for such breach. Accordingly, each Party shall be entitled to seek 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 of this Agreement, in each case without the necessity of proving actual damages or posting any bond or other security (any requirement for which is hereby irrevocably waived by each Party). The right to specific performance and other equitable remedies under this Section 8.8 is in addition to, and not in limitation of, any other rights or remedies available to any Party at law or in equity.
Section 8.9 — Severability
If any provision of this Agreement, or the application thereof to any Person or any circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal, or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity, illegality, or unenforceability, nor shall such invalidity, illegality, or unenforceability affect the validity, legality, or enforceability of such provision, or the application thereof, in any other jurisdiction. The invalid, illegal, or unenforceable provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, while preserving the original intent of the Parties to the maximum extent possible.
Section 8.10 — Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties hereto and their respective permitted successors and assigns) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, no creditor of any Party shall be deemed a third-party beneficiary of this Agreement.
Section 8.11 — Counterparts
This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile transmission, by electronic mail in portable document format (.pdf), or through an electronic signature platform (including Brightwater Software, Ashford Health IT, or any similar technology) shall be equally as effective as delivery of a manually executed counterpart of this Agreement. Each Party agrees that the electronic signatures appearing on this Agreement shall be treated, for all purposes, as original signatures and that the electronic document shall have the same binding force and effect as an original ink signature.
Section 8.12 — Expenses
Except as otherwise expressly provided in this Agreement or in the Merger Agreement, each Party shall bear its own costs, fees, and expenses (including attorneys' fees, accountants' fees, financial advisory fees, and other professional fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. For the avoidance of doubt, nothing in this Section 8.12 shall affect the allocation of transaction costs and expenses as between the Buyer, on the one hand, and the Company, on the other hand, under the Merger Agreement.
Section 8.13 — No Recourse
Notwithstanding anything to the contrary contained in this Agreement or any applicable law, this Agreement may only be enforced against, and any claim, suit, action, or proceeding based upon, arising out of, or related to this Agreement may only be brought against, the entities that are expressly identified as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. No former, current, or future equity holder, partner (whether general or limited), member, manager, stockholder, director, officer, employee, agent, advisor, representative, affiliate, or assignee of any Party (in each case, other than a Party hereto or a permitted successor or assignee thereof) shall have any liability for any obligations or liabilities of any Party under this Agreement or for any claim, suit, action, or proceeding based upon, arising out of, or related to this Agreement; provided, however, that nothing in this Section 8.13 shall limit or otherwise affect the liability of any Person for fraud committe

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TO AGREEMENT AND PLAN OF MERGER

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ROLLOVER AGREEMENT

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