EXHIBIT G
TO AGREEMENT AND PLAN OF MERGER
FORM OF ROLLOVER AGREEMENT
ROLLOVER AGREEMENT
This Rollover Agreement (this "Agreement") is made and entered into as of [●], by and among:
(1) [Insert Full Legal Name of Buyer Fund Entity], a [Insert entity type, e.g., Delaware limited partnership] organized under the laws of [Insert jurisdiction of formation] (the "Buyer");
(2) [Insert Full Legal Name of Rollover Participant], a [Insert entity type, e.g., Delaware limited liability company] organized under the laws of [Insert jurisdiction of formation] (the "Rollover Participant"); and
(3) [Insert Full Legal Name of Merger Subsidiary], a [Insert entity type, e.g., Delaware corporation] organized under the laws of [Insert jurisdiction of formation] ("Merger Sub").
Each of the Buyer, the Rollover Participant, and Merger Sub is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
Instructional Note: Insert each Party's full legal name, entity type (e.g., limited partnership, limited liability company, corporation), and jurisdiction of formation.
RECITALS
WHEREAS, the Buyer, Merger Sub, and [Insert Full Legal Name of Target Company] (the "Company") have entered into, or concurrently herewith are entering into, that certain Agreement and Plan of Merger, dated as of [●] (as the same may be amended, restated, supplemented, 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 (the "Surviving Entity"), upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Rollover Participant is the beneficial and record owner of [●] shares of common stock, par value $[●] per share, of the Company (the "Total Shares"), representing approximately [●]% of the issued and outstanding shares of common stock of the Company as of the date hereof;
WHEREAS, the Rollover Participant desires to contribute [●]% of the Total Shares, equal to [●] shares of Company common stock (the "Rollover Shares"), to the Buyer (or a designated affiliate thereof) in exchange for equity interests in the Surviving Entity or its parent holding entity, in lieu of receiving the Per Share Merger Consideration with respect to such Rollover Shares, all upon the terms and subject to the conditions set forth herein;
WHEREAS, the remaining [●]% of the Total Shares (being [●] shares of Company common stock) (the "Cashed-Out Shares") will be converted into the right to receive the Per Share Merger Consideration of $[●] per share in cash, without interest and subject to applicable withholding, in accordance with the terms and conditions of the Merger Agreement;
WHEREAS, the aggregate implied value of the Rollover Shares is approximately $[●], calculated as the product of (a) [●] Rollover Shares and (b) the Per Share Merger Consideration of $[●] per share;
WHEREAS, the execution and delivery of this Agreement by the Rollover Participant is a condition to the willingness of the Buyer to enter into the Merger Agreement and consummate the transactions contemplated thereby, and the Buyer would not have entered into the Merger Agreement but for the Rollover Participant's agreement to be bound by the terms and conditions set forth herein; and
WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in 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, hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Agreement" has the meaning set forth in the preamble.
"Bankruptcy and Equity Exception" means the qualification that the enforceability of an obligation is subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and similar laws affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
"Buyer" has the meaning set forth in the preamble.
"Cashed-Out Shares" means the Total Shares minus the Rollover Shares, being [●] shares of Company common stock.
"Closing" has the meaning ascribed to such term in the Merger Agreement.
"Closing Date" has the meaning ascribed to such term in the Merger Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
"Company" means [Insert Full Legal Name of Target Company], a [Insert entity type] organized under the laws of [Insert jurisdiction].
"Effective Time" has the meaning ascribed to such term in the Merger Agreement.
"Equity Interests" means the equity interests in the Surviving Entity (or a designated parent holding company thereof) to be issued to the Rollover Participant in exchange for the contribution of the Rollover Shares pursuant to Article II hereof.
"Investor Agreement" has the meaning set forth in Section 2.2.
"Liens" means any mortgage, lien, pledge, charge, security interest, claim, option, right of first refusal, preemptive right, community property interest, equitable interest, encumbrance, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.
"Merger" has the meaning set forth in the Recitals.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of [●], by and among the Company, the Buyer, and Merger Sub, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Merger Sub" has the meaning set forth in the preamble.
"Per Share Merger Consideration" means $[●] per share in cash, without interest.
"Rollover Participant" has the meaning set forth in the preamble.
"Rollover Shares" means [●] shares of Company common stock to be contributed by the Rollover Participant to the Buyer (or its designated affiliate) pursuant to Section 2.1 hereof, as further described on Schedule A attached hereto.
"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" has the meaning ascribed to such term in the Merger Agreement.
"Tax Return" has the meaning ascribed to such term in the Merger Agreement.
"Total Shares" means [●] shares of Company common stock beneficially and of record owned by the Rollover Participant as of the date hereof, as further described on Schedule A attached hereto.
"Voting/Support Agreement" means that certain Voting and Support Agreement, dated as of the date hereof, by and among the Rollover Participant, the Buyer, and the Company (attached as Exhibit H to the Merger Agreement).
Section 1.2 — Interpretation
(a) The headings and captions contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(b) Whenever the words "include," "includes," or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation."
(c) The words "hereof," "herein," "hereunder," and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
(d) All references herein to Articles, Sections, Schedules, and Exhibits shall be deemed references to Articles and Sections of, and Schedules and Exhibits to, this Agreement unless the context shall otherwise require.
(e) Unless the context otherwise requires, (i) any definition of or reference to any agreement, instrument, or other document herein shall be construed as referring to such agreement, instrument, or other document as from time to time amended, supplemented, restated, or otherwise modified (subject to any restrictions on such amendments, supplements, restatements, or modifications set forth herein or therein), (ii) any reference to any law shall be construed as referring to such law as amended, modified, codified, reenacted, supplemented, or superseded in whole or in part, and in effect from time to time, and also to all rules and regulations promulgated thereunder, (iii) any reference herein to any person shall be construed to include such person's successors and permitted assigns, (iv) the words "herein," "hereof," and "hereunder," and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, and (v) all references herein to "$" or "dollars" shall mean United States dollars.
(f) The use of any gender herein shall be deemed to include any other gender, and the use of the singular shall be deemed to include the plural (and vice versa), in each case as the context requires.
(g) The term "business day" shall mean any day other than a Saturday, a Sunday, or a day on which commercial banks in New York, New York are authorized or required by applicable law to close.
(h) 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 all Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II — ROLLOVER CONTRIBUTION
Section 2.1 — Contribution of Rollover Shares
(a) At or immediately prior to the Effective Time, the Rollover Participant shall contribute, assign, transfer, convey, and deliver to the Buyer (or its designated affiliate, as designated by the Buyer in writing to the Rollover Participant no later than five (5) business days prior to the Closing Date) all of the Rollover Participant's right, title, and interest in and to the Rollover Shares, free and clear of all Liens (other than restrictions under applicable securities laws and as set forth in this Agreement and the Voting/Support Agreement). The number of Rollover Shares to be contributed pursuant to this Section 2.1 shall be [●] shares of Company common stock, as set forth on Schedule A attached hereto.
(b) The contribution of the Rollover Shares pursuant to this Section 2.1 shall be deemed to occur immediately prior to the Effective Time and shall be effective as of immediately prior to the Effective Time, such that, at the Effective Time, the Rollover Shares shall not be outstanding shares of Company common stock entitled to receive the Per Share Merger Consideration under the Merger Agreement.
(c) At or prior to the Effective Time, the Rollover Participant shall deliver to the Buyer (or its designated affiliate) such instruments of transfer, assignment, and conveyance as the Buyer may reasonably request to evidence and effectuate the contribution of the Rollover Shares contemplated by this Section 2.1, including stock certificates (if any) representing the Rollover Shares, duly endorsed in blank or accompanied by duly executed stock powers, and such other customary transfer documents as may be reasonably required.
Section 2.2 — Issuance of Equity Interests
(a) In consideration for the contribution of the Rollover Shares pursuant to Section 2.1, the Buyer (or its designated affiliate) shall issue to the Rollover Participant, at the Effective Time, Equity Interests in the Surviving Entity (or a designated parent holding entity thereof) having a fair market value equal to the product of (i) the number of Rollover Shares contributed pursuant to Section 2.1 and (ii) the Per Share Merger Consideration (i.e., an aggregate fair market value of approximately $[●]).
(b) The class, series, designation, rights, preferences, privileges, restrictions, and other terms and conditions of the Equity Interests shall be as set forth in a limited partnership agreement, limited liability company agreement, stockholders' agreement, or other applicable governing document to be entered into by the Buyer, the Rollover Participant, and such other parties as may be appropriate at or prior to the Closing (the "Investor Agreement"). The form and substance of the Investor Agreement shall be mutually agreed by the Buyer and the Rollover Participant prior to the Closing Date, subject to Section 5.6 hereof. A form or term sheet of the Investor Agreement, to the extent available as of the date hereof, is attached hereto as Schedule B.
(c) The Buyer shall deliver to the Rollover Participant at the Effective Time evidence of the issuance of the Equity Interests, which may take the form of a certificate, book-entry notation, or such other evidence of ownership as is customary for the type of Equity Interests being issued.
Instructional Note: Insert cross-reference to the applicable governing document for the post-closing entity (e.g., Amended and Restated Limited Partnership Agreement, Limited Liability Company Agreement, or Stockholders' Agreement).
Section 2.3 — Tax Treatment
(a) The Parties intend that the contribution of the Rollover Shares by the Rollover Participant to the Buyer (or its designated affiliate) in exchange for the Equity Interests shall be treated as a tax-free contribution under Section 351 of the Code, or, to the extent applicable, as part of a reorganization qualifying under Section 368(a) of the Code (the "Intended Tax Treatment"). The Parties shall use commercially reasonable efforts to structure the transactions contemplated by this Agreement in a manner consistent with the Intended Tax Treatment.
(b) Each Party agrees to file all Tax Returns and report all Tax items in a manner consistent with the Intended Tax Treatment, unless otherwise required by a final determination (within the meaning of Section 1313(a) of the Code) by the Internal Revenue Service or a court of competent jurisdiction.
(c) Neither the Buyer nor the Rollover Participant shall take any position on any Tax Return or in any Tax audit, examination, or other proceeding that is inconsistent with the Intended Tax Treatment, except to the extent required by applicable law or a final determination described in Section 2.3(b) above.
(d) The Parties acknowledge that no Party makes any representation or warranty regarding the tax consequences of the transactions contemplated by this Agreement to any other Party, and each Party has relied solely upon the advice of its own tax advisors with respect thereto.
Instructional Note: Insert specific tax characterization elections or cross-references to tax structuring advice, as applicable. Consult with tax counsel to confirm that the contribution structure qualifies for the Intended Tax Treatment under the facts and circumstances of the transaction.
Section 2.4 — Cashed-Out Shares
(a) The Cashed-Out Shares (being the Total Shares less the Rollover Shares, i.e., [●] shares of Company common stock) shall be treated in all respects in the same manner as shares of Company common stock held by all other stockholders of the Company under the Merger Agreement. At the Effective Time, each Cashed-Out Share shall be converted into the right to receive the Per Share Merger Consideration of $[●] per share in cash, without interest and subject to applicable withholding, in accordance with the terms and conditions of the Merger Agreement.
(b) The Rollover Participant shall deliver (or cause to be delivered) a duly and properly executed Letter of Transmittal in respect of the Cashed-Out Shares, together with the stock certificates (if any) representing such Cashed-Out Shares (or, in the case of a lost, stolen, or destroyed certificate, a lost certificate affidavit and indemnity in customary form), to [Insert Name of Exchange Agent/Transfer Agent] (the "Exchange Agent") in accordance with the instructions set forth in the Merger Agreement and the Letter of Transmittal. The Rollover Participant shall comply with all requirements and procedures set forth in the Merger Agreement with respect to the exchange of Cashed-Out Shares for the Per Share Merger Consideration.
Section 2.5 — Withholding
(a) The Buyer, Merger Sub, the Surviving Entity, the Exchange Agent, and their respective agents and affiliates shall be entitled to deduct and withhold from any amounts otherwise payable to the Rollover Participant in respect of the Cashed-Out Shares (or any other amounts payable pursuant to this Agreement or the Merger Agreement) such amounts as are required to be deducted and withheld under the Code, or any applicable provision of state, local, or foreign Tax law. To the extent that any such amounts are so deducted and withheld and properly remitted to the applicable Taxing authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Rollover Participant.
(b) The Rollover Participant shall deliver to the Buyer a properly completed and duly executed IRS Form W-9 (or, if the Rollover Participant is not a United States person within the meaning of Section 7701(a)(30) of the Code, the applicable IRS Form W-8, as appropriate) no later than [●] business days prior to the Closing Date, or such earlier date as may be reasonably requested by the Buyer. In the event that the Rollover Participant fails to deliver such form in a timely manner, the Buyer and the Exchange Agent shall be entitled to withhold from amounts payable to the Rollover Participant at the rates required by applicable law in the absence of such form.
ARTICLE III — REPRESENTATIONS AND WARRANTIES OF THE ROLLOVER PARTICIPANT
The Rollover Participant hereby represents and warrants to the Buyer and Merger Sub as follows:
Section 3.1 — Organization and Authority
The Rollover Participant is a [Insert entity type, e.g., limited liability company] duly organized, validly existing, and in good standing under the laws of [Insert jurisdiction of formation]. The Rollover Participant has all requisite [corporate/limited liability company/partnership] power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
Section 3.2 — Authorization; Binding Agreement
The execution, delivery, and performance of this Agreement by the Rollover Participant and the consummation by the Rollover Participant of the transactions contemplated hereby have been duly and validly authorized by all necessary [corporate/limited liability company/partnership] action on the part of the Rollover Participant, and no other proceedings on the part of the Rollover Participant are necessary to authorize the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Rollover Participant and constitutes the legal, valid, and binding obligation of the Rollover Participant, enforceable against the Rollover Participant in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 3.3 — Ownership of Shares
(a) The Rollover Participant is the sole beneficial and record owner of the Total Shares, consisting of [●] shares of Company common stock. The Total Shares constitute all of the shares of capital stock of the Company (and all other equity interests in the Company, including options, warrants, convertible securities, and other rights to acquire capital stock) owned, directly or indirectly, by the Rollover Participant or any of its affiliates as of the date hereof.
(b) The Total Shares are owned by the Rollover Participant free and clear of all Liens, other than (i) restrictions on transfer under applicable federal and state securities laws, (ii) Liens arising under the Merger Agreement, (iii) Liens arising under the Voting/Support Agreement, and (iv) Liens arising under this Agreement.
(c) Other than this Agreement, the Voting/Support Agreement, and the Merger Agreement, there are no outstanding options, warrants, rights, contracts, calls, puts, rights to subscribe, conversion rights, or other agreements or commitments to which the Rollover Participant is a party, or by which the Rollover Participant or any of the Total Shares are bound, that provide for or relate to the voting, sale, transfer, pledge, assignment, encumbrance, or other disposition of any of the Total Shares. The Rollover Participant has not granted any proxy or power of attorney with respect to any of the Total Shares that is still in effect, other than as contemplated by the Voting/Support Agreement.
Section 3.4 — No Conflicts
The execution and delivery of this Agreement by the Rollover Participant and the consummation by the Rollover Participant of the transactions contemplated hereby do not and will not: (a) violate, conflict with, or result in a breach of any provision of the certificate of formation, operating agreement, certificate of incorporation, bylaws, partnership agreement, or other organizational documents of the Rollover Participant; (b) violate, conflict with, or result in a breach of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, cancellation, amendment, or acceleration under, any contract, agreement, note, bond, indenture, mortgage, or other instrument to which the Rollover Participant is a party or by which the Rollover Participant or any of the Total Shares are bound; (c) violate any applicable law, statute, rule, regulation, judgment, order, writ, injunction, or decree applicable to the Rollover Participant or any of the Total Shares; or (d) require any consent, approval, authorization, permit, or order of, or filing, registration, or qualification with, any governmental authority or any other third party, other than as contemplated by the Merger Agreement or as would not reasonably be expected, individually or in the aggregate, to impair or delay the ability of the Rollover Participant to perform its obligations under this Agreement.
Section 3.5 — Accredited Investor Status
The Rollover Participant is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Rollover Participant is able to bear the economic risk of holding the Equity Interests for an indefinite period and can afford a complete loss of its investment in the Equity Interests.
Section 3.6 — Investment Intent; Restricted Securities
(a) The Rollover Participant is acquiring the Equity Interests for investment purposes only, for its own account, and not with a view toward, or for sale in connection with, any distribution thereof in violation of the Securities Act or any applicable state securities laws. The Rollover Participant does not have any present intention or arrangement to sell, transfer, or otherwise dispose of the Equity Interests or any portion thereof to any other person in violation of the Securities Act.
(b) The Rollover Participant acknowledges and agrees that the Equity Interests have not been, and will not be, registered under the Securities Act or under any state securities laws and that the Equity Interests constitute "restricted securities" within the meaning of Rule 144 promulgated under the Securities Act. The Rollover Participant understands that the Equity Interests may not be sold, transferred, offered for sale, pledged, hypothecated, or otherwise disposed of except in compliance with the Securities Act and applicable state securities laws and the terms and conditions of the Investor Agreement.
(c) The Rollover Participant acknowledges that any certificate or book-entry notation evidencing the Equity Interests may bear a legend or notation to the effect that the Equity Interests have not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sale of the Equity Interests.
Section 3.7 — Sophistication and Due Diligence
(a) The Rollover Participant has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Equity Interests and of making an informed investment decision with respect thereto.
(b) The Rollover Participant has been afforded the opportunity to ask questions of, and receive answers from, duly authorized officers and representatives of the Buyer and its affiliates concerning the Buyer, the Surviving Entity, the terms and conditions of the Equity Interests, and the transactions contemplated by this Agreement, and has received and reviewed such financial and other information as the Rollover Participant has deemed necessary or appropriate to make an informed investment decision. The Rollover Participant has had access to all information concerning the Company, the Buyer, and the Surviving Entity that the Rollover Participant has requested or that has otherwise been made available to the Rollover Participant.
(c) The Rollover Participant acknowledges that neither the Buyer nor any of its affiliates, agents, or representatives has made any representation or warranty, express or implied, to the Rollover Participant regarding the future performance, value, or prospects of the Surviving Entity or the Equity Interests.
Section 3.8 — No Broker
No broker, finder, financial advisor, or investment banker is entitled to any brokerage, finder's, financial advisory, or other similar fee or commission from the Buyer, the Surviving Entity, or any of their respective affiliates in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Rollover Participant.
Section 3.9 — Litigation
There is no action, suit, claim, investigation, arbitration, or proceeding pending or, to the knowledge of the Rollover Participant, threatened in writing against the Rollover Participant before any court, arbitrator, or governmental authority that would reasonably be expected to impair, prevent, or materially delay the ability of the Rollover Participant to perform its obligations under this Agreement or to consummate the transactions contemplated hereby on a timely basis.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Rollover Participant as follows:
Section 4.1 — Organization and Authority
The Buyer is a [Insert entity type, e.g., limited partnership] duly organized, validly existing, and in good standing under the laws of [Insert jurisdiction of formation]. The Buyer has all requisite [partnership/limited liability company] power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby, including the issuance of the Equity Interests to the Rollover Participant.
Section 4.2 — Authorization; Binding Agreement
The execution, delivery, and performance of this Agreement by the Buyer and the consummation by the Buyer of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Buyer (including, to the extent required, by its general partner or managing member), and no other proceedings on the part of the Buyer are necessary to authorize the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Buyer and constitutes the legal, valid, and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 4.3 — No Conflicts
The execution and delivery of this Agreement by the Buyer and the consummation by the Buyer of the transactions contemplated hereby do not and will not: (a) violate, conflict with, or result in a breach of any provision of the certificate of limited partnership, limited partnership agreement, certificate of formation, operating agreement, or other organizational documents of the Buyer; (b) violate, conflict with, or result in a breach of, or constitute a default under, any contract, agreement, or instrument to which the Buyer is a party or by which the Buyer is bound; or (c) violate any applicable law, statute, rule, regulation, judgment, order, writ, injunction, or decree applicable to the Buyer, except in the case of clauses (b) and (c), as would not reasonably be expected, individually or in the aggregate, to impair or delay the ability of the Buyer to perform its obligations under this Agreement.
Section 4.4 — Valid Issuance
The Equity Interests to be issued to the Rollover Participant in accordance with this Agreement, when so issued and delivered in accordance with the terms and for the consideration set forth in 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 Interests being issued), and will be free and clear of all Liens, other than (i) restrictions on transfer under applicable federal and state securities laws, (ii) restrictions set forth in the Investor Agreement, and (iii) Liens created by or through the Rollover Participant.
ARTICLE V — COVENANTS
Section 5.1 — Restriction on Transfer
(a) From the date hereof until the earlier of (i) the Effective Time and (ii) the termination of this Agreement in accordance with Article VII, the Rollover Participant shall not, directly or indirectly, (A) sell, transfer, tender, pledge, assign, hypothecate, encumber, gift, or otherwise dispose of (including by merger, consolidation, operation of law, or otherwise), or enter into any contract, option, derivative arrangement, or other agreement or arrangement providing for or relating to, the sale, transfer, tender, pledge, assignment, hypothecation, encumbrance, gift, or other disposition of, any of the Rollover Shares or any interest therein, (B) grant any proxies or powers of attorney with respect to any of the Rollover Shares, (C) deposit any of the Rollover Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of the Rollover Shares (other than the Voting/Support Agreement), or (D) take any action that would make any representation or warranty of the Rollover Participant contained herein untrue or incorrect or have the effect of preventing, disabling, or delaying the Rollover Participant from performing its obligations under this Agreement.
(b) Notwithstanding the foregoing, the Rollover Participant may transfer the Cashed-Out Shares only in accordance with the terms of the Voting/Support Agreement and applicable law, and subject to such conditions as may be set forth therein.
Section 5.2 — Voting Agreement Cross-Reference
The Rollover Participant acknowledges and agrees that it has entered into the Voting/Support Agreement concurrently herewith (attached as Exhibit H to the Merger Agreement), and that the Rollover Participant's obligations under the Voting/Support Agreement — including, without limitation, the obligation to vote (or cause to be voted) all of the Total Shares in favor of the adoption and approval of the Merger Agreement and the Merger, and against any competing acquisition proposal — are separate from, and in addition to, the Rollover Participant's obligations under this Agreement. Nothing in this Agreement shall be deemed to limit or modify the Rollover Participant's obligations under the Voting/Support Agreement, and nothing in the Voting/Support Agreement shall be deemed to limit or modify the Rollover Participant's obligations under this Agreement.
Section 5.3 — Further Assurances
Each Party agrees to execute and deliver, or cause to be executed and delivered, such additional documents, instruments, conveyances, and assurances, and to take, or cause to be taken, such further actions, in each case as may be reasonably necessary or desirable to carry out and give effect to the provisions of this Agreement and the transactions contemplated hereby, including the contribution of the Rollover Shares and the issuance of the Equity Interests. Without limiting the generality of the foregoing, each Party shall cooperate with the other Parties and their respective counsel in connection with any filings, applications, or submissions required to be made with any governmental authority in connection with the transactions contemplated by this Agreement.
Section 5.4 — Cooperation on Tax Matters
(a) The Rollover Participant and the Buyer shall cooperate in good faith with respect to the Intended Tax Treatment described in Section 2.3, including (i) the timely exchange of information reasonably necessary or useful for the preparation and filing of any Tax Returns or the conduct of any Tax audit, examination, or proceeding, (ii) the filing of any Tax Returns, elections, or statements necessary or desirable to give effect to the Intended Tax Treatment, and (iii) the preparation and delivery of any certificates, representations, or other documentation that may be required or requested in connection with the Intended Tax Treatment.
(b) Each Party shall promptly notify the other Parties of any audit, examination, claim, or other proceeding by any Taxing authority that relates to or could reasonably be expected to affect the Intended Tax Treatment, and the Parties shall cooperate in good faith in responding to any such audit, examination, claim, or proceeding.
Section 5.5 — Notification of Certain Events
The Rollover Participant shall promptly notify the Buyer in writing of (a) any fact, event, circumstance, or development of which the Rollover Participant becomes aware that would cause, or would reasonably be expected to cause, any representation or warranty of the Rollover Participant contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date, (b) any material breach, or any event or development that would reasonably be expected to result in a material breach, of any covenant or obligation of the Rollover Participant under this Agreement, and (c) the receipt by the Rollover Participant of any written notice from any governmental authority or other person alleging that the consent of such person is or may be required in connection with the transactions contemplated by this Agreement. The delivery of any notification pursuant to this Section 5.5 shall not (i) limit or otherwise affect the representations, warranties, covenants, obligations, or agreements of the Rollover Participant or the remedies available to the Buyer under this Agreement, or (ii) be deemed to amend or supplement any representation, warranty, or covenant of the Rollover Participant set forth herein.
Section 5.6 — Investor Agreement
(a) The Rollover Participant agrees to negotiate in good faith and to execute and deliver, on or prior to the Closing Date, the Investor Agreement, which shall set forth the terms and conditions governing the Equity Interests and the relationship among the equity holders of the Surviving Entity (or its designated parent holding entity) following the Closing. The Investor Agreement shall contain customary terms and conditions for equity investments of this type, including, without limitation, provisions relating to:
(i) governance, management, and decision-making authority;
(ii) board of directors or equivalent governing body composition and board representation rights;
(iii) restrictions on the transfer of the Equity Interests, including rights of first offer and rights of first refusal;
(iv) tag-along rights, drag-along rights, and co-sale rights;
(v) preemptive rights and anti-dilution protections;
(vi) information rights and reporting obligations;
(vii) registration rights (including demand registration rights, piggyback registration rights, and shelf registration rights);
(viii) distributions and dividend policies;
(ix) put and call rights, if applicable;
(x) non-competition, non-solicitation, and confidentiality covenants, if applicable; and
(xi) indemnification and exculpation of managers, directors, and officers.
(b) In the event that the Buyer and the Rollover Participant are unable to agree on the form and substance of the Investor Agreement prior to the Closing Date, the Parties shall use commercially reasonable efforts to resolve any open issues and finalize the Investor Agreement as promptly as practicable following the Closing; provided, however, that the failure of the Parties to agree on the Investor Agreement shall not affect the obligation of the Rollover Participant to contribute the Rollover Shares or the obligation of the Buyer to issue the Equity Interests at the Effective Time.
Instructional Note: If available as of the date of execution of this Agreement, attach the form or term sheet of the Investor Agreement as Schedule B. If the form of Investor Agreement is not yet finalized, attach a term sheet summarizing the principal terms to be included therein.
ARTICLE VI — CONDITIONS TO THE ROLLOVER CONTRIBUTION
Section 6.1 — Conditions to the Obligations of the Rollover Participant
The obligation of the Rollover Participant to consummate the contribution of the Rollover Shares pursuant to Section 2.1 shall be subject to the satisfaction (or waiver in writing by the Rollover Participant) of each of the following conditions on or prior to the Closing Date:
(a) Merger Conditions. All conditions to the obligations of the Buyer and Merger Sub to consummate the Merger set forth in the Merger Agreement shall have been satisfied or waived in accordance with the terms thereof (other than conditions that by their nature are to be satisfied at the Closing, each of which shall be capable of being satisfied at the Closing).
(b) Representations and Warranties. The representations and warranties of the Buyer contained in Article IV of this Agreement shall be true and correct in all material respects (without giving effect to any materiality or similar qualifiers contained therein) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties that by their terms speak as of a specified date, which shall be true and correct in all material respects as of such specified date).
(c) Covenants. The Buyer shall have performed and complied with, in all material respects, all of its covenants and obligations under this Agreement that are required to be performed or complied with on or prior to the Closing Date.
Section 6.2 — Conditions to the Obligations of the Buyer
The obligation of the Buyer to consummate the issuance of the Equity Interests to the Rollover Participant pursuant to Section 2.2 shall be subject to the satisfaction (or waiver in writing by the Buyer) of each of the following conditions on or prior to the Closing Date:
(a) Merger Conditions. All conditions to the closing of the Merger set forth in the Merger Agreement shall have been satisfied or waived in accordance with the terms thereof (other than conditions that by their nature are to be satisfied at the Closing, each of which shall be capable of being satisfied at the Closing).
(b) Representations and Warranties. The representations and warranties of the Rollover Participant contained in Article III of this Agreement shall be true and correct in all material respects (without giving effect to any materiality or similar qualifiers contained therein) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties that by their terms speak as of a specified date, which shall be true and correct in all material respects as of such specified date).
(c) Covenants. The Rollover Participant shall have performed and complied with, in all material respects, all of its covenants and obligations under this Agreement that are required to be performed or complied with on or prior to the Closing Date.
(d) Tax Form. The Rollover Participant shall have delivered to the Buyer a properly completed and duly executed IRS Form W-9, or, if the Rollover Participant is not a United States person within the meaning of Section 7701(a)(30) of the Code, the applicable IRS Form W-8, in each case in form and substance reasonably satisfactory to the Buyer.
(e) Instruments of Transfer. The Rollover Participant shall have delivered to the Buyer (or its designated affiliate) all stock certificates (if any) representing the Rollover Shares, duly endorsed in blank or accompanied by duly executed stock powers, and such other instruments of transfer as the Buyer may reasonably request to evidence and effectuate the contribution of the Rollover Shares.
ARTICLE VII — TERMINATION
Section 7.1 — Termination
This Agreement shall automatically terminate, and thereupon be of no further force or effect, upon the earliest to occur of:
(a) the mutual written agreement of the Buyer and the Rollover Participant to terminate this Agreement;
(b) the valid termination of the Merger Agreement in accordance with its terms (including pursuant to Article [●] thereof); or
(c) the Effective Time (at which point the contribution and issuance contemplated by Article II shall have been consummated, and the provisions of this Agreement that are intended to survive the Effective Time shall continue in full force and effect in accordance with their terms).
Instructional Note: Insert the appropriate cross-reference to the termination provisions of the Merger Agreement (e.g., Article VIII or Article IX thereof, as applicable).
Section 7.2 — Effect of Termination
(a) In the event of termination of this Agreement pursuant to Section 7.1(a) or Section 7.1(b), this Agreement shall become null and void and of no further force or effect, and no Party shall have any liability or obligation to any other Party arising out of or in connection with this Agreement, except that:
(i) the provisions of this Article VII and Article VIII (Miscellaneous) shall survive any such termination and shall remain in full force and effect; and
(ii) nothing in this Section 7.2 shall relieve any Party from liability for any willful and material breach of any representation, warranty, covenant, or obligation contained in this Agreement that occurred prior to such termination. For the avoidance of doubt, the right to pursue damages for any such willful and material breach shall survive the termination of this Agreement.
(b) For purposes of this Section 7.2, a "willful and material breach" shall mean a material breach of this Agreement that is the consequence of an intentional act or intentional failure to act by the breaching Party with knowledge that such act or failure to act would, or would reasonably be expected to, result in or constitute a breach of this Agreement.
ARTICLE VIII — MISCELLANEOUS
Section 8.1 — Notices
All notices, requests, demands, claims, consents, waivers, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made (a) when delivered by hand (with written confirmation of receipt), (b) when sent by email (with confirmation of transmission and no automated error or "bounce-back" message received), (c) one (1) business day after being sent by nationally recognized overnight courier service (with written confirmation of receipt), or (d) three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid, to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 8.1):
If to the Buyer:
[Insert Full Legal Name of Buyer Fund Entity] [Insert Street Address] [Insert City, State, ZIP Code]
Attention: [Insert Name and Title]
Email: [Insert Email Address]
with a copy (which shall not constitute notice) to:
[Insert Name of Buyer's Counsel] [Insert Street Address] [Insert City, State, ZIP Code]
Attention: [Insert Name]
Email: [Insert Email Address]
If to the Rollover Participant:
[Insert Full Legal Name of Rollover Participant] [Insert Street Address] [Insert City, State, ZIP Code]
Attention: [Insert Name and Title]
Email: [Insert Email Address]
with a copy (which shall not constitute notice) to:
[Insert Name of Rollover Participant's Counsel] [Insert Street Address] [Insert City, State, ZIP Code]
Attention: [Insert Name]
Email: [Insert Email Address]
If to Merger Sub:
[Insert Full Legal Name of Merger Subsidiary] [Insert Street Address] [Insert City, State, ZIP Code]
Attention: [Insert Name and Title]
Email: [Insert Email Address]
Section 8.2 — Entire Agreement
This Agreement, together with the Merger Agreement, the Voting/Support Agreement, the Investor Agreement (when executed and delivered), and any schedules and exhibits hereto and thereto, constitutes the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous negotiations, discussions, agreements, understandings, representations, and warranties, whether written or oral, among the Parties with respect to such subject matter. There are no representations, warranties, covenants, or agreements among the Parties with respect to the subject matter hereof other than those set forth or referred to in this Agreement.
Section 8.3 — Amendments and Waivers
(a) This Agreement may not be amended, modified, restated, or supplemented in any respect except by a written instrument signed by each of the Parties hereto. Any purported amendment, modification, restatement, or supplement that does not comply with this Section 8.3(a) shall be null and void and of no force or effect.
(b) No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall any such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. 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.
Section 8.4 — Assignment
Neither this Agreement nor any right, interest, or obligation hereunder may be assigned, delegated, or transferred by any Party without the prior written consent of each of the other Parties hereto, and any purported assignment, delegation, or transfer without such consent shall be null and void and of no force or effect; provided, however, that the Buyer may assign its rights and obligations hereunder, in whole or in part, to any affiliate of the Buyer without the prior written consent of the Rollover Participant; provided, further, that no such assignment shall relieve the Buyer of any of its obligations hereunder.
Section 8.5 — Binding Effect; Third-Party Beneficiaries
(a) This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
(b) Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties hereto any rights, benefits, or remedies of any nature whatsoever under or by reason of this Agreement; provided, however, that [Insert Full Legal Name of Target Company] shall be an express third-party beneficiary of Section 5.1 (Restriction on Transfer) and shall have the right to enforce such Section directly against the Rollover Participant.
Section 8.6 — Governing Law