VOTING
Section 1.1 Voting. From and after the date of this Agreement until the date that is the earliest of the following to occur: (a) the consummation of the Merger (including the occurrence of the Effective Time), (b) the termination of the Merger Agreement in accordance with its terms, and (c) the entry without the prior written consent of the Stockholders into any amendment or modification of the Merger Agreement (as it exists on the date of this Agreement), or any written waiver of the Company’s rights under the Merger Agreement (as it exists on the date of this Agreement) made in connection with a request from Parent, in each case, which results in a decrease in, or change in the composition of, or otherwise adversely affects the consideration payable or that may be payable to holders of Company Common Stock in connection with the Merger (including by imposing any material restrictions or additional conditions on receipt of such consideration), or which extends the End Date (such earliest date, the “Expiration Date”), each Stockholder, in such Stockholder’s capacity as a stockholder of the Company, irrevocably and unconditionally hereby agrees, subject to Section 1.4 and Section 1.5, that at any meeting (whether annual or special and each adjourned or postponed meeting) of the Company’s stockholders, however called, or in connection with any written consent of the Company’s stockholders, each Stockholder will (i) appear at such meeting (in person or by proxy) or otherwise cause all of such Stockholder’s Existing Shares and any other shares of Company Common Stock over which it has acquired beneficial ownership after the date of this Agreement (including any shares of Company Common Stock acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options or other rights to acquire Company Common Stock or the conversion of any convertible securities, the vesting of equity awards or otherwise) (collectively, the “New Shares,” and together with the Existing Shares, the “Shares”), which it, he or she owns as of the applicable record date, to be counted as present thereat for purposes of determining a quorum, and respond to each request by the Company for written consent, and (ii) vote or cause to be voted (including by proxy or written consent, if applicable) all such Shares (A) in favor of the adoption of the Merger Agreement and the approval of the transactions contemplated thereby, including the Merger, (B) in favor of any proposal to adjourn or postpone such meeting of the Company’s stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement, (C) against any action or proposal in favor of an Acquisition Proposal, without regard to the terms of such Acquisition Proposal, and (D) against any action, proposal, transaction or agreement that would reasonably be likely to prevent, materially impede or materially delay the Company’s or Parent’s ability to consummate the transactions contemplated by the Merger Agreement, including the Merger. Except as set forth in this Section 1.1, nothing in this Agreement shall limit the right of each Stockholder to vote (including by proxy or written consent, if applicable), in such Stockholder’s sole discretion, in favor of, against or abstain with
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respect to any other matters that are, at any time or from time to time, presented for consideration to the Company’s stockholders. Nothing in this Agreement shall require any of the Stockholders to vote in any manner with respect to any amendment or modification to the Merger Agreement (as it exists on the date of this Agreement) or any written waiver of the Company’s rights under the Merger Agreement (as it exists on the date of this Agreement) made in connection with a request from Parent, or the taking of any action that would reasonably be expected to result in the amendment, modification or waiver of a provision of the Merger Agreement, in any such case, in a manner that results in a decrease in, or change in the composition of, or otherwise adversely affects the consideration payable to holders of Company Common Stock in connection with the Merger (including by imposing any material restrictions or additional conditions on receipt of such consideration), or in a manner that extends the End Date.
Section 1.2 Restrictions on Transfers.
(a) Subject to Section 1.5, absent the prior written consent of Parent, not to be unreasonably withheld or conditioned, each Stockholder hereby agrees that, from the date of this Agreement until the earlier of (x) the Expiration Date and (y) the date on which the Company Stockholder Approval is obtained, such Stockholder shall not, directly or indirectly, sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber, hypothecate or similarly dispose of (by merger, by testamentary disposition, by operation of law or otherwise) (each, a “Transfer”), either voluntarily or involuntarily, or enter into any swap, contract, option or other arrangement or understanding providing for the Transfer of, any rights, including economic consequences, arising from any shares of Company Common Stock (whether New Shares or Existing Shares) or agree to do any of the foregoing, other than any Permitted Transfer to a Permitted Transferee, but only if prior (and as a condition) to the effectiveness of such Transfer:
(i) such Stockholder shall have given reasonable advance notice of such Transfer to Parent and the proposed form of written undertaking by the transferee to be bound by this Agreement and all obligations hereunder as if such transferee were a Stockholder and otherwise to become a party to this Agreement for all purposes hereunder, in each case, solely in respect of the Shares to be Transferred in accordance herewith;
(ii) such form of undertaking shall be reasonably satisfactory in all material respects to Parent; and
(iii) the transferee shall have executed and delivered, for the benefit of Parent, such undertaking to be bound by this Agreement and all obligations hereunder as if such transferee were such Stockholder and otherwise to become a party to this Agreement for all purposes hereunder, in each case, solely in respect of the Shares to be Transferred in accordance herewith.
(b) Notwithstanding anything to the contrary set forth in this Section 1.2, a Transfer shall not include any ordinary course Transfers by limited partners of any equity interests of any investment funds advised by Hellman & Friedman Advisors, LLC (each such fund, “H&F”) not formed for the sole purposes of holding the shares of Company Common Stock, in and of themselves, so long as any such Transfer does not have any adverse effect on the ability of the applicable Stockholder to perform its obligations under this Agreement on the terms set forth herein.
(c) For the avoidance of doubt, (i) no provision in this Agreement shall restrict a Stockholder from effecting any Transfer of Shares following the date on which the Company Stockholder Approval is obtained, and any Shares so Transferred to any person other than a Stockholder shall no longer constitute Shares subject to the provisions hereof and (ii) in no event shall the filing or effectiveness of a Registration Statement with respect to the Shares in and of itself be deemed a Transfer in violation of this Agreement.
(d) As used in this Agreement, “Permitted Transfer” shall mean, in each case, with respect to each Stockholder, any Transfer of Shares by such Stockholder (i) to another Stockholder, (ii) if the Stockholder is a natural person (A) to any member of such Stockholder’s immediate family, (B) to a trust whose sole beneficiaries are such Stockholder and/or members of such Stockholder’s immediate family, or (C) upon the death of such Stockholder, or (iii) to an Affiliate of such Stockholder (as applicable, each, a “Permitted Transferee”).
(e) Any Transfer or attempted Transfer of any Shares in violation of this Section 1.2 shall, to the fullest extent permissible under Applicable Legal Requirements, be null and void ab initio. If any involuntary Transfer
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of any of such Stockholder’s Shares shall occur, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement.
(f) Nothing in this Agreement is intended to waive compliance with, or condone non-compliance with, any transfer restrictions arising under applicable securities Laws or the provisions of any Contracts between any Stockholder and the Company.
Section 1.3 Inconsistent Agreements. Each Stockholder hereby covenants and agrees that, except for this Agreement, such Stockholder shall not, at any time prior to the Expiration Date, (a) enter into any voting agreement or voting trust with respect to the Shares that is inconsistent with this Agreement, (b) grant any proxy, consent or power of attorney with respect to any Shares that is inconsistent with this Agreement or (c) enter into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent such Stockholder from satisfying such Stockholder’s obligations pursuant to this Agreement.
Section 1.4 No Obligation to Exercise Rights or Options. Nothing contained in this Article I shall require any Stockholder (or shall entitle any proxy of such Stockholder) to convert, exercise or exchange any option, convertible securities or other rights in order to obtain any underlying New Shares.
Section 1.5 Margin Agreement. Notwithstanding anything herein to the contrary, nothing in this Agreement, including the restrictions on Transfer set forth in Section 1.2 hereof, shall restrict or apply to Transfers of Shares (a) pursuant to any existing or hereafter granted pledge to one or more lenders under the Margin Agreement or any of the Security Agreements (in each case, as defined below), or a collateral agent on behalf thereof, including, without limitation, in connection with any amendment to the Margin Agreement (whether to increase the aggregate amount of borrowings thereunder or otherwise), or (b) pursuant to a foreclosure or exercise of remedies (or transfer in lieu of foreclosure) by any such lender or any collateral agent, in each case, acting on its behalf, including, without limitation, any Transfers of Shares by such lender or collateral agent. For the avoidance of doubt, any exercise of any lender’s rights and/or remedies under the Margin Agreement or any of the Security Agreements and any Transfer of Shares following any exercise of such remedies shall not be limited or restricted by any provision of this Agreement and no transferee of any Shares in connection therewith shall be required to be bound by this Agreement in any respect. As used herein, “Margin Agreement” means that certain margin loan agreement entered into by certain Stockholders and described in Amendment No. 1, filed on April 4, 2022, to the Schedule 13D originally filed by certain Stockholders on March 4, 2022, relating to the Shares described therein, as amended, restated, supplemented or otherwise modified from time to time and “Security Agreements” means the accompanying pledge, security and other collateral agreements to the Margin Agreement, including any pledge and Security Agreements entered into after the date hereof.
ARTICLE II
