UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT
TO
RULE 13d-2(a)
(Amendment No. 4)*
CARROLS RESTAURANT GROUP, INC. |
(Name of Issuer) |
|
Common Stock, Par Value $0.01 |
(Title of Class of Securities) |
|
14574X104 |
(CUSIP Number) |
|
Jill Granat
General Counsel and Corporate Secretary
Restaurant Brands International Inc.
130 King Street West, Suite 300, P.O. Box 339
Toronto, Ontario M5X 1E1
(905) 845-6511 |
with copies to:
Scott A. Barshay
Laura C. Turano
Paul, Weiss, Rifkind Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York, 10019
(212) 373-3000 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications) |
|
January 11, 2024 |
(Date of Event which Requires Filing of this Statement) |
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Act”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 2 of 12 |
1 |
NAME OF REPORTING PERSON
Restaurant Brands International Inc. (IRS Identification Number
98-1202754) |
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐ |
3 |
SEC USE ONLY
|
|
4 |
SOURCE OF FUNDS
OO, BK |
|
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
|
☐ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
SOLE VOTING POWER
9,414,580 (1) |
8 |
SHARED VOTING POWER
0 |
9 |
SOLE DISPOSITIVE POWER
9,414,580 (1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,414,580 (1) |
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
☐ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.6% (1) |
|
14 |
TYPE OF REPORTING PERSON
CO |
|
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 3 of 12 |
1 |
NAME OF REPORTING PERSON
Restaurant Brands International Limited Partnership (IRS Identification
Number 98-1206431) |
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐ |
3 |
SEC USE ONLY
|
|
4 |
SOURCE OF FUNDS
OO, BK |
|
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
|
☐ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario |
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH |
7 |
SOLE VOTING POWER
9,414,580 (1) |
8 |
SHARED VOTING POWER
0 |
9 |
SOLE DISPOSITIVE POWER
9,414,580 (1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,414,580 (1) |
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
☐ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.6% (1) |
|
14 |
TYPE OF REPORTING PERSON
PN |
|
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page
4 of 12 |
Item 1. Security and Issuer.
This Amendment No. 4 (this “Amendment”)
relates to the Schedule 13D originally filed with the Securities and Exchange Commission on June 8, 2012 (the “Schedule 13D”),
with respect to the common stock, par value $0.01 per share (the “Carrols Common Stock”), of Carrols Restaurant Group,
Inc. (the “Issuer”), a Delaware corporation.
The principal executive offices of the Issuer are located
at 968 James Street, Syracuse, New York 13203.
Item 2. Identity and Background.
Item 2 of the Schedule 13D is hereby amended and replaced
by the following information.
This Amendment is being filed by Restaurant Brands
International Limited Partnership, a limited partnership organized under the laws of Ontario (“Partnership”) and Restaurant
Brands International Inc., a Canadian corporation (“RBI”), the general partnership of Partnership (Partnership and
RBI, together, the “Reporting Persons”). The principal executive offices of each of the Reporting Persons are located
at 130 King Street West, Suite 300, P.O. Box 399, Toronto, Ontario M5X 1E. Each of the Reporting Persons is an indirect holding company
for The TDL Group Corp. (“Tim Hortons”) and its consolidated subsidiaries, Burger King International, Inc. (“Burger
King”) and its consolidated subsidiaries, Popeyes Louisiana Kitchen, Inc. (“Popeyes”) and its consolidated
subsidiaries and FRG, LLC (“Firehouse Subs”) and its consolidated subsidiaries. The Reporting Persons, together, are
one of the world’s largest quick service restaurant companies.
Partnership indirectly beneficially owns 100 shares
of Series D Preferred Stock of the Issuer that is directly beneficially owned by its wholly-owned subsidiaries. As the sole general partner
of Partnership, RBI may also be deemed to indirectly beneficially own the shares of Series D Preferred Stock beneficially owned by Partnership.
Each share of Series D Preferred Stock is convertible, at the option of the holder of such shares, into 94,145.8 shares of Carrols Common
Stock and votes with the Carrols Common Stock on an as-converted basis. Holders of the Series D Preferred Stock are entitled
to receive dividends payable on the Carrols Common Stock on an as converted basis, are entitled to a liquidation preference of $0.01 per
share and thereafter will be entitled to share ratably (on an as-converted basis) with the Carrols Common Stock in the distribution
of any remaining assets.
Based on the convertibility of the Series D Preferred
Stock, Partnership indirectly beneficially owns the shares of Carrols Common Stock directly beneficially owned by its wholly-owned subsidiaries.
As the sole general partner of Partnership, RBI may also be deemed to indirectly beneficially own the shares of Carrols Common Stock beneficially
owned by Partnership.
Set forth on Annex A to this Schedule 13D, and
incorporated herein by reference, is a list of the respective executive officers, directors, control persons or general partner, as applicable,
of the respective Reporting Persons that contains the following information with respect to each such person, as applicable: (a) name,
(b) business address, (c) present principal occupation or employment (including the name and the principal business address, if other
than the applicable Reporting Person, of any corporation or other organization in which such employment is conducted), and (d) citizenship.
During the last five years, neither of the Reporting
Persons nor, to the best of their knowledge, any of their respective executive officers, directors, control persons or general partner,
as applicable, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) was
a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or
is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 5 of 12 |
Item 3. Sources and Amount of Funds or Other Consideration.
Item 3 of the
Schedule 13D is hereby amended and supplemented by the addition of the following:
On January 16,
2024, RBI, BK Cheshire Corp., a Delaware corporation and subsidiary of RBI (“Merger Sub” and, together with RBI, the “Buyer
Parties”) and the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) providing for the merger
of Merger Sub with and into the Issuer (the “Merger”), with the Issuer continuing as the surviving corporation and becoming
a subsidiary of RBI pursuant to the Merger. Capitalized terms used herein but not otherwise defined have the meaning set forth in the
Merger Agreement.
RBI intends to fund the payment of the Merger Consideration
(as defined below) with cash on hand and a term loan arranged under its existing credit agreement, dated October 27, 2014, as amended
(the “Credit Agreement”). Copies of the Credit Agreement and the amendments thereto
are filed as Exhibits 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 and 7.11 to this Amendment.
Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is hereby amended and supplemented by the addition
of the following:
Non-Binding Proposal
On January 11, 2024, RBI submitted to the Issuer a
non-binding proposal to acquire all of the issued and outstanding Carrols Common Stock.
Merger Agreement
On January 16, 2024, RBI, Merger Sub and the Issuer
entered into the Merger Agreement.
At the effective time of the Merger (the “Effective
Time”):
| · | each share of Carrols Common Stock outstanding immediately prior to the Effective Time (other than shares of Carrols Common Stock
that are (A)(1) held by the Issuer and its Subsidiaries; (2) owned by RBI or Merger Sub; or (3) owned by any direct or indirect Subsidiary
of RBI or Merger Sub as of immediately prior to the Effective Time (the “Owned Carrols Shares”), or (B) issued and outstanding
as of immediately prior to the Effective Time and held by stockholders of the Issuer who have neither voted in favor of the Merger nor
consented thereto in writing and who have properly and validly exercised their statutory rights of appraisal in respect of such shares
of Carrols Common Stock in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “Dissenting
Shares”)) will be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal to $9.55,
without interest thereon (the “Merger Consideration”); |
| · | each Owned Carrols Share outstanding immediately prior to the Effective Time will remain issued and outstanding as a share of common
stock of the surviving corporation; and |
| · | each share of Series D Preferred Stock outstanding as of immediately prior to the Effective Time will remain issued and outstanding
as a share of Series D Preferred Stock of the surviving corporation, on the terms set forth in the Series D Certificate of Designation. |
The Merger Agreement also provides that, at the Effective
Time, by virtue of the Merger:
| · | each award of restricted stock of the Issuer issued under the Company Equity Plans, other than a Carrols PSA (as defined below) (“Carrols
RSA”), whether vested or unvested, that is outstanding as of immediately prior to the Effective Time will be fully vested, cancelled
and automatically converted, without any required action on the part of the holder thereof, into the right to receive an amount in cash
equal to the product of (i) the aggregate number of shares of Carrols Common Stock subject to such Carrols RSA, multiplied by (ii) the
Merger Consideration, subject to any applicable withholding Taxes payable in respect thereof; |
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 6 of 12 |
| · | each award of restricted stock of the Issuer granted under the Company Equity Plans whose vesting is conditioned in full or in part
based on achievement of performance goals or metrics (“Carrols PSA”), whether vested or unvested, that is outstanding as of
immediately prior to the Effective Time shall be fully vested, cancelled and automatically converted, without any required action on the
part of the holder thereof, into the right to receive an amount in cash equal to the product of (i) the aggregate number of shares of
Carrols Common Stock subject to such Carrols PSA (with any performance conditions deemed to be earned based on target performance), multiplied
by (ii) the Merger Consideration, subject to any applicable withholding Taxes payable in respect thereof; |
| · | each restricted stock unit award granted under the Company Equity Plans, other than a Carrols PSU (as defined below) (“Carrols
RSU”), whether vested or unvested, that is outstanding as of immediately prior to the Effective Time shall be fully vested, cancelled
and automatically converted, without any required action on the part of the holder thereof, into the right to receive an amount in cash
equal to the product of (i) the aggregate number of shares of Carrols Common Stock subject to such Carrols RSU (together with any accrued
and unpaid dividends or dividend equivalents corresponding to such Carrols RSU), multiplied by (ii) the Merger Consideration, subject
to any applicable withholding Taxes payable in respect thereof; |
| · | each restricted stock unit award granted under the Company Equity Plans whose vesting is conditioned in full or in part based on achievement
of performance goals or metrics (“Carrols PSU”), whether vested or unvested, that is outstanding as of immediately prior to
the Effective Time shall be fully vested, cancelled and automatically converted, without any required action on the part of the holder
thereof, into the right to receive an amount in cash equal to the product of (i) the aggregate number of shares of Carrols Common Stock
subject to such Carrols PSU (together with any accrued and unpaid dividends or dividend equivalents corresponding to such Carrols PSU)
(with any performance conditions deemed to be earned based on the greater of “target” or “actual” performance,
as measured through the Effective Time and extrapolated over the full performance period, provided, that, if the Effective Time occurs
on or prior to December 31, 2024, the performance conditions for the Carrols PSUs granted in 2024 shall be deemed to be earned based on
target performance), multiplied by (ii) the Merger Consideration, subject to any applicable withholding Taxes payable in respect thereof;
and |
| · | each option to purchase shares of Carrols Common Stock granted under the Company Equity Plans (“Carrols Option”), whether
vested or unvested, that is unexpired, unexercised, and outstanding as of immediately prior to the Effective Time shall be fully vested,
cancelled and automatically converted, without any required action on the part of the holder thereof, into the right to receive an amount
in cash equal to the product of (i) the aggregate number of shares of Carrols Common Stock subject to such Carrols Option, multiplied
by (ii) the excess, if any, of the Merger Consideration over the applicable per share exercise price under such Carrols Option, subject
to any applicable withholding Taxes payable in respect thereof (provided that any Carrols
Option that is not in-the-money shall be cancelled immediately upon the Effective Time
without payment or consideration). |
If the Merger is consummated, the Carrols Common Stock
will be delisted from The NASDAQ Global Market and deregistered under the Securities Exchange Act of 1934, as amended, as promptly as
practicable following the Effective Time.
Consummation of the Merger is subject to certain conditions set forth in
the Merger Agreement, including, but not limited to, the: (A) affirmative vote of the holders of (i) a majority of all of the outstanding
shares of Carrols capital stock to adopt the Merger Agreement and (ii) a majority of all of the outstanding shares of Carrols Common Stock
held by the Unaffiliated Company Stockholders to adopt the Merger Agreement; (B) expiration or termination
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 7 of 12 |
of any waiting
periods (and any extensions thereof) applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the “HSR Act”); (C) absence of any law or order in the United States restraining, enjoining or otherwise
prohibiting the Merger; and (D) absence of a Company Material Adverse Effect.
From the execution of the Merger Agreement until 11:59
p.m., Eastern time, on the date that is 30 days after the date of the Merger Agreement (the “No-Shop Period Start Date”),
the Issuer and its representatives have the right to:
| (i) | solicit, initiate, propose, knowingly encourage or facilitate, any proposal or inquiry that constitutes, or is reasonably expected
to lead to, an Acquisition Proposal; |
| (ii) | furnish to any Person (and its representatives and financing sources), subject to the terms and obligation of an Acceptable Confidentiality
Agreement, any non-public information relating to the Issuer or its Subsidiaries with the intent to induce the making, submission or announcement
of, or to knowingly encourage or facilitate, any proposal or inquiry that constitutes, is reasonably expected to lead to, an Acquisition
Proposal; and |
| (iii) | participate or engage in discussions or negotiations with any such Person (and such representatives and financing sources) with respect
to an Acquisition Proposal. |
From the No-Shop Period Start Date until the earlier
to occur of the termination of the Merger Agreement and the Effective Time, the Issuer will be subject to customary “no-shop”
restrictions on its ability to solicit alternative Acquisition Proposals from third parties and to provide information to, and participate
in discussions and engage in negotiations with, third parties regarding any alternative Acquisition Proposals, subject to a customary
“fiduciary out” provision that allows the Issuer, under certain specified circumstances, to provide information to, and participate
in discussions and engage in negotiations with, third parties with respect to an Acquisition Proposal if the Special Committee of the
Issuer’s Board of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) that
such alternative Acquisition Proposal constitutes a Superior Proposal or is reasonably expected to lead to a Superior Proposal, and the
failure to take such actions would be inconsistent with its fiduciary duties pursuant to applicable law.
The Merger Agreement contains certain termination rights
for the Issuer, on the one hand, and the Buyer Parties, on the other hand. Upon termination of the Merger Agreement under specified circumstances,
including the Issuer terminating the Merger Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal
or RBI terminating the Merger Agreement due to the Issuer’s Board of Directors’ withdrawal of its recommendation to the Issuer’s
stockholders in favor of the Merger, the Issuer will be required to pay RBI a termination fee of $19,000,000 (or, if termination occurs
in certain circumstances prior to the No-Shop Period Start Date, $9,500,000). The termination fee will also be payable by the Issuer if
the Merger Agreement is terminated under certain circumstances and prior to such termination, an Acquisition Proposal for an Acquisition
Transaction is publicly announced or disclosed and such Acquisition Transaction is consummated or the Issuer enters into an agreement
providing for the consummation of such Acquisition Transaction within one year of the termination. In addition to the foregoing termination
rights, and subject to certain limitations, the Issuer or RBI may terminate the Merger Agreement if the Merger is not consummated by November
30, 2024.
Each of RBI, Merger Sub and the Issuer made customary
representations and warranties in the Merger Agreement and agreed to customary covenants, including, among others, a covenant on the part
of the Issuer regarding the operation of the business of the Issuer and its Subsidiaries prior to the consummation of the Merger. The
Merger Agreement also provides that the Issuer, on the one hand, or the Buyer Parties, on the other hand, may specifically enforce the
obligations under the Merger Agreement, including the obligation to consummate the Merger if the conditions set forth in the Merger Agreement
are satisfied.
Voting Agreement
On January 16, 2024, RBI entered into a Voting Agreement (the “Voting
Agreement”) with Cambridge Franchise Holdings, LLC, Alexander Sloane and Matthew Perelman (collectively, the “Cambridge Signatories”),
pursuant to which the Cambridge Signatories have agreed, among other things, to vote their shares of Carrols Common Stock (A) in favor
of (i) the adoption of the Merger Agreement and the Merger, (ii) the approval of any
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 8 of 12 |
proposal
to adjourn the special meeting of the Issuer’s stockholders to a later date, if there are not sufficient affirmative votes (in
person or by proxy) to obtain the Requisite Stockholder Approval and RBI proposes or requests such postponement or adjournment in accordance
with the Merger Agreement, and (iii) any other matter or action necessary for the consummation of the transactions contemplated by the
Merger Agreement, and (B) against (i) any action or agreement that would reasonably be expected to result in a breach of any covenant,
representation or warranty or other obligation or agreement of the Issuer in the Merger Agreement or result in any condition of the Merger
not being satisfied prior to the Termination Date, (ii) any Acquisition Proposal or (iii) approval of any other proposal, transaction,
agreement or action that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Merger
or any other transactions contemplated by the Merger Agreement.
The Voting Agreement will terminate upon the earlier
to occur of (A) the Effective Time, (B) the termination of the Merger Agreement in accordance with its terms, and (C) the date
on which any amendment to the Merger Agreement is effected, or any waiver of the Issuer’s rights under the Merger Agreement is granted,
in each case, without the prior written consent of the Cambridge Signatories, that (i) diminishes the Merger
Consideration to be received by the stockholders of the Issuer, (ii) changes the form in which the Merger
Consideration is payable to the stockholders of the Issuer, (iii) extends the Termination Date or (iv) imposes any additional conditions
on the Cambridge Signatories’ rights to receive the Merger Consideration.
From the execution of the Voting Agreement until the
termination of the Voting Agreement, the Cambridge Signatories will be subject to customary transfer restrictions with respect to their
shares of Carrols Common Stock.
If the Merger is effected, it would result in one or
more of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D, including, without limitation, the acquisition of
additional securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, the delisting of the Carrols Common
Stock from The NASDAQ Global Market and the Carrols Common Stock becoming eligible for termination from registration pursuant to Section
12(b) of the Act.
The foregoing
description of the Merger Agreement, the Voting Agreement and the transactions contemplated thereby do not purport to be complete and
is subject to, and qualified in its entirety by reference to, the full text of each of the Merger Agreement and the Voting Agreement,
which are attached as Exhibit 7.1 and Exhibit 7.2 respectively, and are incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
(a) –
(b) As the indirect parent of its indirect wholly-owned subsidiaries, as of the date of this Amendment, Partnership indirectly beneficially
owns 9,414,580 shares of Carrols Common Stock which it has the right to acquire upon the conversion of shares of Series D Preferred Stock
of the Issuer. Such shares of Carrols Common Stock represent 14.6% of the outstanding Carrols Common Stock as of the date of this Amendment.
As the sole general partner of Partnership, RBI may be deemed to indirectly beneficially own the shares of Carrols Common Stock directly
beneficially owned by Partnership’s indirect wholly-owned subsidiaries. Except as set forth in this Amendment, neither the Reporting
Persons nor, to the best of the knowledge of the Reporting Persons, any of the persons listed in Annex A beneficially own any shares of
Carrols Common Stock or have any right to acquire any shares of Carrols Common Stock.
As the indirect
parent of its indirect wholly-owned subsidiaries, Partnership indirectly possesses sole voting and dispositive power over 9,414,580 shares
of Carrols Common Stock. For the reasons described in paragraph (a) above, RBI may be deemed to indirectly possess sole voting and
dispositive power over 9,414,580 shares of Carrols Common Stock.
(c) No
transactions in the Carrols Common Stock have been effected by the Reporting Persons during the 60 days prior to the date of this Statement.
(d) As
the general partner of Partnership, RBI indirectly has the sole right to receive or the sole power to direct the receipt of dividends
from, or the proceeds from the sale of, the shares of Carrols Common Stock described in paragraph (a) above.
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page 9 of 12 |
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 is hereby amended and supplemented as follows:
The information set forth in Item 4 of this Amendment
is incorporated herein by reference.
Item 7. Materials to Be Filed as Exhibits.
Exhibit
No. |
Description |
7.1 |
Agreement and Plan of Merger, dated as of January 16, 2024, by and among Restaurant Brands International Inc. (“RBI”), BK Cheshire Corp. and Carrols Restaurant Group, Inc.* |
7.2 |
Voting Agreement, dated as of January 16, 2024, by and among Restaurant Brands International Inc. and Cambridge Franchise Holdings, LLC, Alexander Sloane and Matthew Perelman |
7.3 |
Credit Agreement, dated October 27, 2014, among 1011778 B.C. Unlimited Liability Company, as the Parent Borrower, New Red Finance, Inc., as the Subsidiary Borrower, 1013421 B.C. Unlimited Liability Company, as Holdings, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, the Lenders Party thereto, Wells Fargo Bank, National Association, as Syndication Agent, the Parties listed thereto as Co-Documentation Agents, J.P. Morgan Securities LLC, and Wells Fargo Securities LLC, as Joint Lead Arrangers, and J.P. Morgan Securities LLC, Wells Fargo Securities LLC, and Merrill Lynch, Pierce, Fenner and Smith, Incorporated, as Joint Book Runners (the “Credit Agreement”) (incorporated by reference to Exhibit 4.2 to the Form S-4 of RBI (File No. 333-198769)) |
7.4 |
Amendment No. 1, dated May 22, 2015, to the Credit Agreement (incorporated by reference to Exhibit 10.1 to the Form 8-K of RBI filed on May 26, 2015) |
7.5 |
Amendment No. 2, dated February 17, 2017, to the Credit Agreement (incorporated by reference to Exhibit 10.10(d) to the Form 10-Q of RBI filed on October 26, 2017) |
7.6 |
Amendment No. 3, dated October 2, 2018, to the Credit Agreement (incorporated by reference to Exhibit 10.10(h) to the Form 10-Q of RBI filed on October 24, 2018) |
7.7 |
Amendment No. 4, dated as of November 19, 2019, to the Credit Agreement, dated October 27, 2014, by and among 1011778 B.C. Unlimited Liability Company, as parent borrower, New Red Finance, Inc., as subsidiary borrower, 1013421 B.C. Unlimited Liability Company, the other guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and swing line lender, and the other lenders party thereto (incorporated by reference to Exhibit 10.68 to the Form 8-K of RBI filed on November 20, 2019) |
7.8 |
Amendment No. 5, dated as of April 2, 2020, to the Credit Agreement, dated October 27, 2014, by and among 1011778 B.C. Unlimited Liability Company, as parent borrower, New Red Finance, Inc., as subsidiary borrower, 1013421 B.C. Unlimited Liability Company, the other guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and swing line lender, and the other lenders party thereto (incorporated by reference to Exhibit 10.71 to the Form 8-K of RBI filed on April 3, 2020) |
7.9 |
Incremental Facility Amendment No. 5 and Amendment No. 6, dated as of December 13, 2021, to the Credit Agreement, dated October 27, 2014 (as amended), by and among 1011778 B.C. Unlimited Liability Company, as parent borrower, New Red Finance, Inc., as subsidiary borrower, 1013421 B.C. Unlimited Liability Company, the other guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and swing line lender, and the other lenders party thereto (incorporated herein by reference to Exhibit 10.80 to the Form 8-K of Registrant filed on December 15, 2021) |
7.10 |
Amendment No. 7, dated as of September 21, 2023, to the Credit Agreement, dated October 27, 2014, by and among 1011778 B.C. Unlimited Liability Company, as parent borrower, New Red Finance, Inc., as subsidiary borrower, 1013421 B.C. Unlimited Liability Company, the other guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and swing line lender, and the other lenders party thereto (incorporated by reference to Exhibit 10.10(m) to the Form 8-K of RBI filed on September 21, 2023) |
7.11 |
Amendment No. 8, dated as of December 28, 2023, to the Credit Agreement, dated October 27, 2014, by and among 1011778 B.C. Unlimited Liability Company, as parent borrower, 1013421 B.C. Unlimited Liability Company, Restaurant Brands International Limited Partnership, 1013414 B.C. Unlimited Liability Company, and JPMorgan Chase Bank, N.A., as administrative agent (incorporated by reference to Exhibit 10.10(n) to the Form 8-K of RBI filed on January 4, 2024) |
* The schedules and exhibits have been omitted pursuant to Item 601(a)(5)
of Regulation S-K. RBI agrees to furnish supplementally a copy of such schedules and exhibits, or any section thereof, to the SEC upon
request.
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page
10 of 12 |
ANNEX A
3G Restaurant Brands Holdings LP
3G Restaurant Brands Holdings LP, a Cayman Islands limited partnership,
owns over 27.5% of the combined voting power of Restaurant Brands International Inc. through its ownership of an aggregate of 123,312,485
Partnership exchangeable units of Restaurant Brands International Limited Partnership, with voting rights in respect of the common shares
of Restaurant Brands International Inc. on a one vote per exchangeable unit basis. The principal business of 3G Restaurant Brands Holdings
LP is to act as an investment vehicle for its limited partners and its principal address and office is c/o 3G Capital, Inc., 600 Third
Avenue 37th Floor, New York, New York 10016. The general partner of 3G Restaurant Brands Holdings LP is 3G Restaurant Brands Holdings
General Partner Ltd.
3G Restaurant Brands Holdings General Partner Ltd.
3G Restaurant Brands Holdings General Partner Ltd., a Cayman Islands exempted
company, is the general partner of 3G Restaurant Brands Holdings LP. The principal business of 3G Restaurant Brands Holdings General Partner
Ltd. is to act as the general partner of 3G Restaurant Brands Holdings and its principal address and office is c/o 3G Capital, Inc., 600
Third Avenue 37th Floor, New York, New York 10016. Set forth below are the name and present principal occupation or employment of each
director of 3G Restaurant Brands Holdings General Partner Ltd. as of the date hereof. Each director’s business address is c/o 3G
Capital, Inc., 600 Third Avenue 37th Floor, New York, New York 10016.
Name |
|
Present Principal Occupation and Principal Business Address |
|
Citizenship |
|
|
|
|
|
Board of Directors |
|
|
|
|
Alexandre Behring |
|
Co-founding partner, board member and Managing Partner, 3G Capital |
|
Brazil/Italy |
Jorge Lemann |
|
Cofounder, 3G Capital |
|
Brazil/Switzerland |
Carlos Alberto Sicupira |
|
Co-founder, 3G Capital |
|
Brazil |
Marcel Telles |
|
Co-founder, 3G Capital |
|
Brazil |
Roberto Moses Thompson Motta |
|
Co-founder, 3G Capital |
|
Brazil/Italy |
Restaurant Brands International Inc.
Set forth below are the name and present principal occupation or employment
of each director and executive officer of Restaurant Brands International Inc. as of the date hereof. Unless otherwise indicated, (x)
the executive officer’s or director’s business address is located at 130 King Street West, Suite 300, P.O. Box 399, Toronto,
Ontario M5X 1E1 and (y) the name, principal business and address of the corporation or other organization in which the executive officer’s
employment is conducted refers to Restaurant Brands International Inc. as described in response to Item 2 of this Schedule 13D.
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page
11 of 12 |
Name |
|
Present Principal Occupation and Principal Business Address |
|
Citizenship |
|
|
|
|
|
Executive Officers |
|
|
|
|
Joshua Kobza |
|
Chief Executive Officer |
|
United States |
J. Patrick Doyle |
|
Executive Chairman |
|
United States |
Matthew Dunnigan |
|
Chief Financial Officer |
|
United States |
Duncan Fulton |
|
Chief Corporate Officer |
|
Canada |
Jill M. Granat |
|
General Counsel |
|
United States |
Jeff Housman |
|
Chief People & Services Officer |
|
United States |
Tom Curtis |
|
President, Burger King U.S. & Canada |
|
United States |
Axel Schwan |
|
President, Tim Hortons Canada & U.S. |
|
Germany |
David Shear |
|
President, International |
|
United States |
Sami Siddiqui |
|
President, Popeyes U.S. & Canada |
|
United States |
|
|
|
|
|
Board of Directors |
|
|
|
|
Alexandre Behring |
|
Co-founding partner, board member and Managing Partner, 3G Capital
600 Third Avenue 37th Floor, New York, New York 10016 |
|
Brazil and Italy |
J. Patrick Doyle |
|
Executive Chairman, Restaurant Brands International Inc. |
|
United States |
Maximilien de Limburg Stirum |
|
Executive Chairman of Société Familiale d’Investissements
and CEO and Director of Denarius S.A.
Route de Longwy, 488, L-1940 Luxembourg |
|
Belgium |
Cristina Farjallat |
|
Regional Sales Director, Facebook Brasil
Avenida Brigadeiro Faria Lima, 3732
Sao Paulo, SP –Brazil CEP 04548-132 |
|
Brazil |
Jordana Fribourg |
|
Chief Talent Officer, Continental Grain Company
767 Fifth Ave, New York, NY 10153 |
|
United States |
Ali Hedayat |
|
Founder and Managing Director, Maryana Capital
50 Ardwold Gate, Toronto ON M5R 2W2, Canada |
|
Canada |
Marc Lemann |
|
Director, Restaurant Brands International Inc. |
|
Brazil and Switzerland |
Jason Melbourne |
|
Global Head of Distribution at Canaccord Genuity
161 Bay Street, Suite 3000 Toronto, ON Canada M5J 2S1 |
|
Canada |
Daniel S. Schwartz |
|
Managing Partner, 3G Capital Partners LP
600 Third Avenue 37th Floor, New York, New York 10016 |
|
United States |
Thecla Sweeney |
|
Partner and co-founder of Alphi Capital Inc.
161 Bay Street, Suite 4120 Toronto ON M5J 2S1 |
|
Canada |
Restaurant Brands International Limited Partnership
The general partner of Restaurant Brands Limited Partnership is Restaurant
Brands International Inc. See details above regarding the executive officers and directors of Restaurant Brands International Inc.
CUSIP No. 14574X104 |
SCHEDULE 13D/A |
Page
12 of 12 |
SIGNATURES
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated as of January 16, 2024
|
RESTAURANT BRANDS INTERNATIONAL INC. |
|
|
|
|
|
By: |
/s/ Jill Granat |
|
|
Name: Title: |
Jill Granat
General Counsel and Secretary |
|
|
|
|
|
|
|
|
|
|
RESTAURANT BRANDS INTERNATIONAL LIMITED PARTNERSHIP |
|
|
|
|
|
By: |
/s/ Jill Granat |
|
|
Name: Title: |
Jill Granat
General Counsel and Secretary |
|
EXHIBIT 7.1
Execution Version
AGREEMENT AND PLAN OF
MERGER
by and among
RESTAURANT BRANDS INTERNATIONAL
INC.
BK CHESHIRE CORP.
and
CARROLS RESTAURANT GROUP, INC.
Dated as of January 16,
2024
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS & INTERPRETATIONS |
5 |
1.1 |
CERTAIN DEFINITIONS |
5 |
1.2 |
ADDITIONAL DEFINITIONS |
15 |
1.3 |
CERTAIN INTERPRETATIONS |
17 |
ARTICLE II THE MERGER |
19 |
2.1 |
THE MERGER |
19 |
2.2 |
THE EFFECTIVE TIME |
19 |
2.3 |
THE CLOSING |
19 |
2.4 |
EFFECT OF THE MERGER |
20 |
2.5 |
CERTIFICATE OF INCORPORATION AND BYLAWS |
20 |
2.6 |
DIRECTORS AND OFFICERS |
20 |
2.7 |
EFFECT OF MERGER ON COMPANY CAPITAL STOCK |
20 |
2.8 |
EQUITY AWARDS |
22 |
2.9 |
EXCHANGE OF CERTIFICATES |
23 |
2.10 |
NO FURTHER OWNERSHIP RIGHTS IN COMPANY CAPITAL STOCK |
25 |
2.11 |
LOST, STOLEN OR DESTROYED CERTIFICATES |
26 |
2.12 |
REQUIRED WITHHOLDING |
26 |
2.13 |
NO DIVIDENDS OR DISTRIBUTIONS |
26 |
2.14 |
NECESSARY FURTHER ACTIONS |
26 |
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
26 |
3.1 |
ORGANIZATION; GOOD STANDING |
27 |
3.2 |
CORPORATE POWER; ENFORCEABILITY |
27 |
3.3 |
COMPANY BOARD APPROVAL; FAIRNESS OPINION; ANTI-TAKEOVER LAWS |
27 |
3.4 |
REQUISITE STOCKHOLDER APPROVAL |
28 |
3.5 |
NON-CONTRAVENTION |
28 |
3.6 |
REQUISITE GOVERNMENTAL APPROVALS |
28 |
3.7 |
COMPANY CAPITALIZATION |
29 |
3.8 |
SUBSIDIARIES |
30 |
3.9 |
COMPANY SEC REPORTS |
31 |
3.10 |
COMPANY FINANCIAL STATEMENTS; INTERNAL CONTROLS; INDEBTEDNESS |
31 |
3.11 |
NO UNDISCLOSED LIABILITIES |
32 |
3.12 |
ABSENCE OF CERTAIN CHANGES |
32 |
3.13 |
MATERIAL CONTRACTS |
32 |
3.14 |
REAL PROPERTY |
33 |
3.15 |
ENVIRONMENTAL MATTERS |
34 |
3.16 |
INTELLECTUAL PROPERTY |
34 |
3.17 |
TAX MATTERS |
35 |
3.18 |
EMPLOYEE PLANS |
36 |
3.19 |
LABOR MATTERS |
38 |
3.20 |
PERMITS |
39 |
3.21 |
COMPLIANCE WITH LAWS |
39 |
3.22 |
LEGAL PROCEEDINGS; ORDERS |
39 |
3.23 |
INSURANCE |
39 |
3.24 |
RELATED PERSON TRANSACTIONS |
40 |
3.25 |
BROKERS |
40 |
3.26 |
FOREIGN MATTERS. |
40 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES |
40 |
4.1 |
ORGANIZATION; GOOD STANDING |
40 |
4.2 |
POWER; ENFORCEABILITY |
40 |
4.3 |
NON-CONTRAVENTION |
41 |
4.4 |
REQUISITE GOVERNMENTAL APPROVALS |
41 |
4.5 |
LEGAL PROCEEDINGS; ORDERS |
41 |
4.6 |
OWNERSHIP OF COMPANY CAPITAL STOCK |
41 |
4.7 |
BROKERS |
42 |
4.8 |
OPERATIONS OF MERGER SUB |
42 |
4.9 |
NO PARENT VOTE OR APPROVAL REQUIRED |
42 |
4.10 |
STOCKHOLDER AND MANAGEMENT ARRANGEMENTS |
42 |
4.11 |
SUFFICIENT FUNDS |
42 |
4.12 |
EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES |
42 |
ARTICLE V INTERIM OPERATIONS OF THE COMPANY |
43 |
5.1 |
AFFIRMATIVE OBLIGATIONS |
43 |
5.2 |
FORBEARANCE COVENANTS |
44 |
5.3 |
GO SHOP; NO SOLICITATION |
47 |
ARTICLE VI ADDITIONAL COVENANTS |
52 |
6.1 |
REQUIRED ACTION AND FORBEARANCE; EFFORTS |
52 |
6.2 |
FILINGS |
52 |
6.3 |
PROXY STATEMENT, SCHEDULE 13E-3 AND OTHER REQUIRED SEC FILINGS |
54 |
6.4 |
COMPANY STOCKHOLDER MEETING |
57 |
6.5 |
COOPERATION WITH DEBT FINANCING |
57 |
6.6 |
ANTI-TAKEOVER LAWS |
60 |
6.7 |
ACCESS |
61 |
6.8 |
SECTION 16(B) EXEMPTION |
61 |
6.9 |
DIRECTORS’ AND OFFICERS’ EXCULPATION, INDEMNIFICATION AND INSURANCE |
61 |
6.10 |
EMPLOYEE MATTERS |
63 |
6.11 |
DELIVERY OF SUBSIDIARY ORGANIZATIONAL DOCUMENTS |
66 |
6.12 |
OBLIGATIONS OF THE BUYER PARTIES AND THE COMPANY |
66 |
6.13 |
NOTIFICATION OF CERTAIN MATTERS |
66 |
6.14 |
PUBLIC STATEMENTS AND DISCLOSURE |
67 |
6.15 |
TRANSACTION LITIGATION |
67 |
6.16 |
STOCK EXCHANGE DELISTING; DEREGISTRATION |
67 |
6.17 |
ADDITIONAL AGREEMENTS |
67 |
6.18 |
PARENT VOTE |
67 |
6.19 |
COMPANY CREDIT AGREEMENT |
68 |
ARTICLE VII CONDITIONS TO THE MERGER |
68 |
7.1 |
CONDITIONS TO EACH PARTY’S OBLIGATIONS TO EFFECT THE MERGER |
68 |
7.2 |
CONDITIONS TO THE OBLIGATIONS OF THE BUYER PARTIES |
68 |
7.3 |
CONDITIONS TO THE OBLIGATIONS OF THE COMPANY TO EFFECT THE MERGER |
69 |
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER |
70 |
8.1 |
TERMINATION |
70 |
8.2 |
MANNER AND NOTICE OF TERMINATION; EFFECT OF TERMINATION |
71 |
8.3 |
FEES AND EXPENSES |
72 |
8.4 |
AMENDMENT |
73 |
8.5 |
EXTENSION; WAIVER |
73 |
8.6 |
SPECIAL COMMITTEE APPROVAL |
74 |
ARTICLE IX GENERAL PROVISIONS |
74 |
9.1 |
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS |
74 |
9.2 |
NOTICES |
74 |
9.3 |
ASSIGNMENT |
75 |
9.4 |
CONFIDENTIALITY |
75 |
9.5 |
ENTIRE AGREEMENT |
75 |
9.6 |
THIRD PARTY BENEFICIARIES |
76 |
9.7 |
SEVERABILITY |
76 |
9.8 |
REMEDIES |
76 |
9.9 |
GOVERNING LAW |
77 |
9.10 |
CONSENT TO JURISDICTION |
78 |
9.11 |
WAIVER OF JURY TRIAL |
78 |
9.12 |
COMPANY DISCLOSURE LETTER REFERENCES |
78 |
9.13 |
COUNTERPARTS |
78 |
9.14 |
NO LIMITATION |
79 |
9.15 |
NON-RECOURSE |
79 |
Exhibits
Exhibit A Form of Surviving Corporation
Certificate of Incorporation
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN
OF MERGER (this “Agreement”) is made and entered into as of January 16, 2024, by and among Restaurant Brands International
Inc., a corporation existing under the laws of Canada (“Parent”), BK Cheshire Corp., a Delaware corporation and Subsidiary
of Parent (“Merger Sub”, and together with Parent, the “Buyer Parties”), and Carrols Restaurant
Group, Inc., a Delaware corporation (the “Company”). Each of the Company, Parent and Merger Sub is sometimes referred
to as a “Party.” All capitalized terms that are used in this Agreement have
the respective meanings given to them in Article I.
RECITALS
A. The
Company Board has established a special transaction committee of independent and disinterested members of the Company Board (the “Special
Committee”).
B. The
Special Committee has (i) determined that it is in the best interests of the Company and the Unaffiliated Company Stockholders, and
declared it advisable, to enter into this Agreement providing for the merger of Merger Sub with and into the Company (the “Merger”)
in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) upon the terms and subject to
the conditions set forth herein; (ii) approved and adopted this Agreement and (iii) resolved to recommend that the Company Board approve
and adopt this Agreement.
C. The
Company Board has (i) determined that it is in the best interests of the Company and the Company Stockholders (including the Unaffiliated
Company Stockholders), and declared it advisable, to enter into this Agreement providing for the Merger in accordance with the DGCL upon
the terms and subject to the conditions set forth herein; (ii) approved and adopted this Agreement and approved the execution and
delivery of this Agreement by the Company, the performance by the Company of its covenants and other obligations hereunder, and the consummation
of the Merger upon the terms and subject to the conditions set forth herein; and (iii) resolved to recommend that the stockholders
of the Company adopt this Agreement and approve the Merger in accordance with the DGCL and directed that such matter be submitted for
consideration of the stockholders of the Company at the Company Stockholders’ Meeting.
D. Each
of the board of directors of Parent and the board of directors of Merger Sub has (i) declared it advisable to enter into this Agreement;
and (ii) approved the adoption, execution and delivery of this Agreement, the performance of the respective covenants and other obligations
of Parent and Merger Sub hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein.
E. Prior
to the execution and delivery of this Agreement, and as a condition to the willingness of the Buyer Parties to enter into this Agreement,
certain stockholders of the Company have entered into a Voting Agreement (the “Voting Agreement”) in connection with
the Merger.
F. The
Buyer Parties and the Company desire to (i) make certain representations, warranties, covenants and agreements in connection with
this Agreement and the Merger; and (ii) prescribe certain conditions with respect to the consummation of the Merger.
AGREEMENT
NOW, THEREFORE, in consideration
of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable
consideration, the receipt and
sufficiency
of which are hereby acknowledged and accepted, and intending to be legally bound hereby, the Buyer Parties and the Company agree as follows:
Article I
DEFINITIONS & INTERPRETATIONS
1.1
Certain Definitions. For all purposes of and pursuant to this Agreement, the following capitalized terms have the following
respective meanings:
(a)
“Acceptable Confidentiality Agreement” means an agreement with the Company that is either (i) in effect
as of the execution and delivery of this Agreement or (ii) executed, delivered and effective after the execution and delivery of
this Agreement, in either case containing provisions that require any counterparty thereto (and any of its Affiliates and representatives)
that receives non-public information of or with respect to the Company Group to keep such information confidential; provided, however,
that, in each case, the provisions contained therein are no less restrictive in any material respect to such counterparty (and any of
its Affiliates and representatives named therein) than the terms of the Confidentiality Agreement, it being understood that such agreement
need not contain any “standstill” or similar provisions or otherwise prohibit the making of any Acquisition Proposal.
(b)
“Acquisition Proposal” means any offer or proposal (other than an offer or proposal by the Buyer Parties) to
engage in an Acquisition Transaction.
(c)
“Acquisition Transaction” means any transaction or series of related transactions (other than the transactions
contemplated hereby) involving:
(i)
any direct or indirect purchase or other acquisition by any Person or “group” (as defined pursuant to Section 13(d)
of the Exchange Act) of Persons (in each case, other than the Buyer Parties or their Affiliates or any group that includes the Buyer Parties
or their Affiliates), whether from the Company or any other Person(s), of securities representing more than 15% of the total outstanding
equity securities of the Company (by vote or economic interests) after giving effect to the consummation of such purchase or other acquisition,
including pursuant to a tender offer or exchange offer by any Person or “group” of Persons that, if consummated in accordance
with its terms, would result in such Person or “group” of Persons beneficially owning more than 15% of the total outstanding
equity securities of the Company (by vote or economic interests) after giving effect to the consummation of such tender or exchange offer;
(ii)
any direct or indirect purchase, license or other acquisition by any Person or “group” (as defined pursuant to Section 13(d)
of the Exchange Act) of Persons (in each case, other than the Buyer Parties or their Affiliates or any group that includes the Buyer Parties
or their Affiliates) of assets constituting or accounting for more than 15% of the consolidated assets, revenue or net income of the Company
Group, taken as a whole (measured by the fair market value thereof as of the date of such purchase or acquisition); or
(iii)
any merger, consolidation, share exchange, business combination, recapitalization, reorganization, liquidation, dissolution or
other transaction involving the Company pursuant to which (A) any Person or “group” (as defined pursuant to Section 13(d)
of the Exchange Act) of Persons (in each case, other than the Buyer Parties or their Affiliates or any group that includes the Buyer Parties
or their Affiliates) would hold securities representing more than 15% of the total outstanding equity securities of the Company (by vote
or economic interests) after giving effect to the consummation of such transaction
(d)
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person. For the avoidance of doubt, for purposes of this Agreement, (i) Parent and
its Affiliates (other than the Company and its Subsidiaries) shall not be deemed to be Affiliates of the Company and its Subsidiaries
and (ii) the Company and its Subsidiaries shall not be deemed to be Affiliates of the Parent and its Affiliates. For purposes of this
definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities,
by contract or otherwise.
(e)
“Antitrust Law” means the Sherman Antitrust Act, the Clayton Antitrust Act, the HSR Act, the Federal Trade Commission
Act and all other laws, whether in any domestic or foreign jurisdiction, that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or
the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the Merger.
(f)
“Audited Company Balance Sheet” means the consolidated balance sheet (and the notes thereto) of the Company
Group as of January 1, 2023 set forth in the Company’s Annual Report on Form 10-K filed by the Company with the SEC for the fiscal
year ended January 1, 2023.
(g)
“Business Day” means each day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank
of New York is closed.
(h)
“Business Systems” means all computer hardware (whether general or special purpose), electronic data processing
systems, information technology systems and computer systems, including any outsourced electronic data processing, information technology,
or computer systems that are owned or used by or for any of the Company Group in the conduct of the business of the Company Group.
(i)
“Code” means the Internal Revenue Code of 1986.
(j)
“Company Board” means the Board of Directors of the Company.
(k)
“Company Capital Stock” means the Company Common Stock and the Company Preferred Stock.
(l)
“Company Common Stock” means the Common Stock, par value $0.01 per share, of the Company.
(m)
“Company Credit Agreement” means that certain credit agreement, dated as of April 30, 2019, by and among the
Company, the guarantors party thereto, the lenders party thereto and Wells Fargo Bank, National Association as the administrative agent,
and as further amended, restated, amended and restated.
(n)
“Company Equity Plans” means the Carrols Restaurant Group, Inc. 2016 Stock Incentive Plan, as amended and restated
effective June 16, 2023, and the Carrols Restaurant Group, Inc. 2006 Stock Incentive Plan (as amended from time to time), in each case,
that provide for the issuance of any Company Equity Awards.
(o)
“Company Group” means the Company and its Subsidiaries.
(p)
“Company Indenture” means that certain Indenture, dated as of June 28, 2021, by and among the Company, as issuer,
the guarantors party thereto and The Bank of New York Mellon, as trustee, and as further supplemented, amended, restated, amended and
restated.
(q)
“Company Material Adverse Effect” means any change, event, violation,
inaccuracy, effect or circumstance (each, an “Effect”) that, individually or taken together with all other Effects
that have occurred on or prior to the date of determination of the occurrence of the Company Material Adverse Effect, is or would reasonably
be expected to have a material adverse effect on the business, financial condition or results of operations of the Company Group, taken
as a whole; provided, however, that none of the following (by itself or when aggregated) will be deemed to be or constitute
a Company Material Adverse Effect or will be taken into account when determining whether a Company Material Adverse Effect has occurred
or may, would or could occur (subject to the limitations set forth below):
(i)
changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions
in the global economy generally;
(ii)
changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or
region in the world, including (1) changes in interest rates or credit ratings in the United States or any other country; (2) changes
in exchange rates for the currencies of any country; or (3) any suspension of trading in securities (whether equity, debt, derivative
or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country
or region in the world;
(iii)
changes in conditions in the industries in which the Company Group generally conducts business;
(iv)
changes in regulatory, legislative or political conditions in the United States or any other country or region in the world;
(v)
any geopolitical conditions, outbreak of hostilities, acts or declarations of war, sabotage, terrorism (including cyberterrorism)
or military actions, or any other similar event (including any escalation or general worsening of any of the foregoing) in the United
States or any other country or region in the world;
(vi)
earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions, any
acts of God, epidemics, pandemics or disease outbreaks and other force majeure events (including any escalation or general worsening of
any of the foregoing) in the United States or any other country or region in the world;
(vii)
any Effect resulting from the announcement of this Agreement or the pendency of the Merger and the transactions contemplated hereby
(including the identity of Parent, Merger Sub or their Affiliates), including the impact thereof on the relationships, contractual or
otherwise, of the Company Group with employees, labor unions, suppliers, customers, partners, vendors or any other third Person or other
business relationships (other than for purposes of any representation or warranty contained in Section 3.5 or Section 3.6, and the related
conditions to the Closing);
(viii)
the compliance by any Party with the terms of this Agreement, including any action taken or refrained from being taken pursuant
to or in accordance with the terms of this Agreement (other
than for
purposes of any representation or warranty contained in Section 3.5 or Section 3.6, and the related conditions to the Closing);
(ix)
any action taken or refrained from being taken, in each case which Parent has expressly approved, consented to or requested in
writing following the date hereof;
(x)
changes or proposed changes in GAAP or other accounting standards or in any applicable laws or regulations (or the enforcement
or interpretation of any of the foregoing);
(xi)
changes in the price or trading volume of the Company Common Stock or any change in the credit rating of the Company or any of
its securities, in and of itself (it being understood that any cause of such change may be deemed to constitute, in and of itself, a Company
Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);
(xii)
any failure, in and of itself, by the Company Group to meet (A) any public estimates or expectations of the Company’s
revenue, earnings or other financial performance or results of operations for any period; or (B) any internal budgets, plans, projections
or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that any cause of
any such failure may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration
when determining whether a Company Material Adverse Effect has occurred);
(xiii)
the availability or cost of equity, debt or other financing to the Buyer Parties;
(xiv)
any breach by Parent or Merger Sub of this Agreement;
(xv)
any action taken or refrained from being taken pursuant to the express terms of any Franchise Agreement in the ordinary course
of business (excluding any incurrence of capital expenditures, other than capital expenditures for necessary maintenance costs with respect
to any restaurants operated by the Company Group), and any action taken by Parent or its Affiliates in connection with the Franchise Agreements
(in each case, it being understood that any cause of any such action by Parent may be deemed to constitute, in and of itself, a Company
Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);
and
(xvi)
any Transaction Litigation or other Legal Proceeding threatened, made or brought by any of the current or former Company Stockholders
(on their own behalf or on behalf of the Company) against the Company, any of its executive officers or other employees or any member
of the Company Board arising out of the Merger or any other transaction contemplated by this Agreement;
except, with respect to clauses
(i), (ii), (v), (vi) and (x), to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other
companies operating in the industries in which the Company Group conducts business, in which case only the incremental disproportionate
adverse impact may be taken into account in determining whether there has occurred a Company Material Adverse Effect.
(r)
“Company Notes” means those certain 5.875% senior notes due 2029 under the Company Indenture.
(s)
“Company Option” means each option to purchase shares of Company Common Stock granted under the Company Equity
Plans.
(t)
“Company Preferred Stock” means the Preferred Stock, par value $0.01 per share, of the Company, including the
Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock and the Series D Convertible
Preferred Stock.
(u)
“Company PSA” each award of restricted stock of the Company issued under the Company Equity Plans whose vesting
is conditioned in full or in part based on achievement of performance goals or metrics.
(v)
“Company PSU” means each restricted stock unit award granted under the Company Equity Plans whose vesting is
conditioned in full or in part based on achievement of performance goals or metrics.
(w)
“Company RSA” means each award of restricted stock of the Company issued under the Company Equity Plans, other
than a Company PSA.
(x)
“Company RSU” means each restricted stock unit award granted under the Company Equity Plans, other than a Company
PSU.
(y)
“Company Stockholders” means the holders of shares of Company Capital Stock.
(z)
“Continuing Employees” means each individual who is an employee of the Company Group immediately prior to the
Effective Time and continues to be an employee of Parent or one of its Subsidiaries (including the Surviving Corporation) on and immediately
following the Effective Time.
(aa)
“Contract” means any (i) written contract, subcontract, note, bond, mortgage, indenture, lease, license, sublicense
or (ii) other legally binding agreement, excluding purchase orders in either instance.
(bb)
“Data Security Requirements” means, collectively, all of the following to the extent relating to privacy, data
protection, data security, or security breach notification requirements and to the extent applicable to a Company Group entity from time
to time: (i) the Company Group’s written policies, procedures and published privacy policies; (ii) all applicable laws, rules
and regulations (“Data Protection Laws”); and (iii) any binding standards (including, if applicable, the Payment Card
Industry Data Security Standard (PCI DSS)).
(cc)
“DOJ” means the United States Department of Justice or any successor thereto.
(dd)
“Environmental Law” means any applicable law (including common law) or order relating to pollution, the protection
of the environment (including ambient air, surface water, groundwater or land) or exposure of any Person with respect to Hazardous Substances
or otherwise relating to the production, use, storage, treatment, transportation, recycling, disposal, discharge, release or other handling
of any Hazardous Substances, or the investigation, clean-up or remediation thereof.
(ee)
“ERISA” means the Employee Retirement Income Security Act of 1974.
(ff)
“Exchange Act” means the Securities Exchange Act of 1934.
(gg)
“Franchise Agreements” means any and all franchise agreements, development agreements, master franchise agreements
and any bailment, advertising, master program or other similar agreements (excluding, for the avoidance of doubt, (i) agreements relating
to Parent’s or its Affiliates’ ownership
of securities
of the Company and (ii) this Agreement), by and between Parent or any of its Affiliates, on the one hand, and the Company or any of its
Subsidiaries, on the other hand.
(hh)
“FTC” means the United States Federal Trade Commission or any successor thereto.
(ii)
“GAAP” means generally accepted accounting principles, consistently applied, in the United States.
(jj)
“Governmental Authority” means any government, governmental or regulatory entity or body, department, commission,
bureau, council, board, agency or instrumentality, and any court, tribunal, arbitrator or arbitral body (public or private) or judicial
body, in each case whether federal, state, county or provincial, and whether local or foreign.
(kk)
“Hazardous Substance” means any substance, material or waste that is characterized or regulated by a Governmental
Authority pursuant to any Environmental Law as “hazardous,” “pollutant,” “contaminant,” “toxic”
or “radioactive,” or for which liability or standards of conduct may be imposed pursuant to any Environmental Law, including
petroleum and petroleum products, polychlorinated biphenyls, per- and polyfluoroalkyl substances and friable asbestos.
(ll)
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
(mm)
“In-the-Money Company Options” means Company Options with an exercise price per share less than the Per Share
Price.
(nn)
“Indebtedness” means any of the following liabilities or obligations: (i) indebtedness for borrowed money
(including any principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, commitment and other fees, sale
or liquidity participation amounts, reimbursements, indemnities and all other amounts payable in connection therewith); (ii) liabilities
evidenced by bonds, debentures, notes or other similar instruments or debt securities; (iii) liabilities pursuant to or in connection
with letters of credit or banker’s acceptances or similar items (in each case whether or not drawn, contingent or otherwise); (iv) liabilities
pursuant to capitalized leases; (v) liabilities arising out of interest rate and currency swap arrangements and any other arrangements
designed to provide protection against fluctuations in interest or currency rates; (vi) deferred purchase price liabilities related
to past acquisitions; (vii) payment obligations arising in connection with earnouts or other contingent payment obligations under Contracts
(other than contingent indemnification obligations that have not matured and as to which no claims have been made, or to the Knowledge
of the Company, threatened); (viii) liabilities arising from any breach of any of the foregoing; and (ix) indebtedness of others
guaranteed by the Company Group or secured by any lien or security interest on the assets of the Company Group.
(oo)
“Intellectual Property” means the rights associated with the following: (i) all United States and foreign
patents and applications therefor (“Patents”); (ii) all copyrights, copyright registrations and applications therefor
and all other rights corresponding thereto throughout the world (“Copyrights”); (iii) trademarks, service marks,
trade dress rights, domain name registrations, and similar designation of origin and rights therein (“Marks”); (iv) all
rights in mask works, and all mask work registrations and applications therefor; (v) rights in Software, trade secrets and confidential
information; (vi) rights of publicity; and (vii) any other intellectual property or proprietary rights or similar, corresponding
or equivalent rights to any of the foregoing anywhere in the world.
(pp)
“IRS” means the United States Internal Revenue Service or any successor thereto.
(qq)
“Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s
Chief Executive Officer, Chief Financial Officer, General Counsel, Chief Development Officer, Chief Restaurant Officer and Controller.
“Knowledge” of Parent, with respect to any matter in question, means the actual knowledge of Parent’s Chief Executive
Officer, Chief Financial Officer, General Counsel and Controller, in each case after reasonable inquiry of those employees who would reasonably
be expected to have actual knowledge of the matter in question.
(rr)
“Legal Proceeding” means any claim, action, charge, audit, lawsuit, litigation, complaint, hearing, arbitration,
investigation (to the Knowledge of the Company, as used in relation to the Company Group) or other similarly formal legal proceeding brought
by or pending before any Governmental Authority, arbitrator, mediator or other tribunal.
(ss)
“Material Contract” means any of the following Contracts other than Franchise Agreements:
(i)
any “material contract” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those
agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K) with respect to the Company Group, taken as a whole;
(ii)
(A) any material Contract with any supplier or service provider to the Company Group whose annual expenditures for the fiscal year
ended January 1, 2023 or January 1, 2022 represented in excess of $500,000 for such fiscal year;
(iii)
any Contract (A) relating to the disposition or acquisition of assets by the Company Group with a value or purchase price
greater than $500,000 after the date hereof other than in the ordinary course of business; or (B) pursuant to which the Company Group
will acquire any material ownership interest in any other Person or other business enterprise;
(iv)
any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing
of money, extension of credit or other Indebtedness, in each case relating to Indebtedness with an aggregate principal amount or total
commitments in excess of $500,000, other than (A) accounts receivables and payables in the ordinary course of business; and (B) loans
to Subsidiaries of the Company in the ordinary course of business;
(v)
any contract providing for property management or similar services;
(vi)
any Contract providing for indemnification of any officer, director or employee by the Company Group, other than Contracts entered
into on substantially the same form as the Company Group’s standard forms previously made available to Parent;
(vii)
any Contract that is an agreement in settlement of a dispute that imposes material obligations on the Company Group after the date
hereof; and
(viii)
any Contract that involves a joint venture entity, limited liability company or legal partnership with a third party (excluding,
for avoidance of doubt, reseller agreements and other commercial agreements that do not involve the formation of an entity with any third
Person).
(tt)
“Nasdaq” means The Nasdaq Global Select Market and any successor stock exchange.
(uu)
“Notes” means the Company’s 5.875% Senior Notes due 2029, governed by the Company Indenture.
(vv)
“NYSE” means the New York Stock Exchange and any successor stock exchange.
(ww)
“Payoff Letter” means, with respect to the Company Credit Agreement, a customary payoff letter executed by the
lenders or other creditors thereunder (or their duly authorized agent or representative), which states the aggregate amount of outstanding
obligations of the Company and its Subsidiaries under the Company Credit Agreement as of the date specified in such letter (together with
a customary per diem for payment following such date) and the instructions for payment of the same to discharge such obligations, which
letter shall also state that, upon receipt of payment of such amount (together with the per diem, to the extent applicable) in cash in
immediately available funds, (a) all obligations and liabilities of the Company and its Subsidiaries under the Company Credit Agreement
(other than those liabilities that expressly survive the termination thereof) shall be satisfied and all guarantees provided by, and all
other agreements of, the Company and its Subsidiaries under the Company Credit Agreement shall be terminated (to the extent applicable,
other than any issued and outstanding letters of credit thereunder for which alternative arrangements may have been agreed), (b) all liens
on the equity interests and assets of the Company and its Subsidiaries created in connection with the Company Credit Agreement (to the
extent applicable, other than any cash collateral or other arrangements to backstop any letters of credit issued and outstanding thereunder
that are not terminated at Closing) shall be released, and the Company and its Subsidiaries or Parent or any of its Affiliates are authorized
to file such documents and instruments as are necessary to evidence such release and (c) provide for delivery to the Company (or their
designee) on or promptly following the Closing Date all possessory collateral (if any) in such lenders’ possession.
(xx)
“Permitted Liens” means any of the following: (i) liens for Taxes, assessments and governmental charges
or levies either not yet delinquent or that are being contested in good faith and by appropriate proceedings and for which appropriate
reserves have been established to the extent required by GAAP; (ii) mechanics, carriers’, workmen’s, warehouseman’s,
repairmen’s, materialmen’s or other liens or security interests that are not yet delinquent or that are being contested in
good faith and by appropriate proceedings and for which appropriate reserves have been established to the extent required by GAAP; (iii) leases,
subleases and licenses (other than capital leases and leases underlying sale and leaseback transactions); (iv) liens imposed by applicable
law (other than Tax law); (v) pledges or deposits to secure obligations pursuant to workers’ compensation laws or similar legislation
or to secure public or statutory obligations; (vi) pledges and deposits to secure the performance of bids, trade contracts, leases,
surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business;
(vii) defects, imperfections or irregularities in title, easements, covenants and rights of way (unrecorded and of record) and other
similar liens (or other encumbrances of any type), and zoning, building and other similar codes or restrictions, in each case that do
not adversely affect in any material respect the current use or value of the applicable property owned, leased, used or held for use by
the Company Group; (viii) liens the existence of which are disclosed in the notes to the consolidated financial statements of the
Company included in the Company SEC Reports filed as of the date hereof; (ix) any other liens that do not secure a liquidated amount,
that have been incurred or suffered in the ordinary course of business, and that would not, individually or in the aggregate, have a material
effect on the Company Group, taken as a whole; (x) statutory, common law or contractual liens (or other encumbrances of any type)
of landlords or liens against the interests of the landlord or owner of any Leased Real Property unless caused by the Company Group; (xi)
liens (or other encumbrances of any type) that do not materially and adversely affect the use or operation of the property subject thereto;
or (xii) liens pertaining to Indebtedness that has been disclosed to Parent and that, pursuant to the terms of such Indebtedness, is permitted
to remain outstanding following Closing.
(yy)
“Person” means any individual, corporation (including any non-profit corporation), limited liability company,
joint stock company, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, firm, Governmental
Authority or other enterprise, association, organization or entity.
(zz)
“Personally Identifiable Information” means all data that identifies an individual or, in combination with any
other information or data, is capable of identifying an individual, or which is otherwise classified as ‘personal data,’ ‘personally
identifiable information,’ ‘protected health information,’ or similar term under applicable Data Protection Laws.
(aaa)
“Processed” or “Processing” means to store, collect, copy, process, transfer, transmit, display,
access, use, adapt, record, retrieve, organize, structure, erase or disclose, and any actions that are otherwise defined as ‘processed’
or ‘processing’ under applicable Data Protection Laws.
(bbb)
“Representatives” means, with respect to any Person, its directors, officers, employees, consultants, agents,
representatives and advisors.
(ccc)
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
(ddd)
“SEC” means the United States Securities and Exchange Commission or any successor thereto.
(eee)
“Securities Act” means the Securities Act of 1933.
(fff)
“Series A Convertible Preferred Stock” means the Series A Convertible Preferred Stock, par value $0.01 per share,
of the Company.
(ggg)
“Series B Convertible Preferred Stock” means the Series B Convertible Preferred Stock, par value $0.01 per share,
of the Company.
(hhh)
“Series C Convertible Preferred Stock” means the Series C Convertible Preferred Stock, par value $0.01 per share,
of the Company.
(iii)
“Series D Convertible Preferred Stock” means the Series D Convertible Preferred Stock, par value $0.01 per share,
of the Company.
(jjj)
“Series D Convertible Preferred Stock Certificate of Designation” means the Certificate of Designation for the
Series D Convertible Preferred Stock, dated December 20, 2022.
(kkk)
“Software” means all computer software (in object code or source code format), associated databases, and related
documentation and materials.
(lll)
“Specified Letter” means a pre-consummation letter from the Federal Trade Commission in similar form to that
set forth in its blogpost dated August 3, 2021 and posted at this link: https://www.ftc.gov/system/files/attachments/blog_posts/Adjusting%20merger%20review%20to%20deal%20with%20the%20surge%20in%20merger%20filings/sample_pre-consummation_warning_letter.pdf,
or a letter of, and limited to, similar substance from the Federal Trade Commission or DOJ.
(mmm)
“Specified Data Breach” means the unauthorized (i) disclosure of Personally Identifiable Information in the
possession, custody or control of any member of the Company Group or that is
processed
on behalf of any member of the Company Group; or (ii) access, use, theft, transmission or transfer of Personally Identifiable Information
Processed by or in the possession, custody or control of any member of the Company Group that, in the case of each of clauses (i) or
(ii), would reasonably be expected to (A) negatively impact in any material respect, the business, reputation, or results of operation
of the Company Group; or (B) result in any member of the Company Group having any material obligation under applicable Data Protection
Law to provide notification regarding any of the foregoing to any Person or Governmental Authority.
(nnn)
“Subsidiary” of any Person means (i) a corporation of which more than 50% of the combined voting power
of the outstanding voting equity securities of such corporation is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person; (ii) a partnership of which such
Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly,
is the general partner and has the power to direct the policies, management and affairs of such partnership; (iii) a limited liability
company of which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries of such
Person, directly or indirectly, is the manager or managing member and has the power to direct the policies, management and affairs of
such limited liability company; or (iv) any other Person (other than a corporation, partnership or limited liability company) in
which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries of such Person, directly
or indirectly, has at least a majority ownership and the power to direct the policies, management and affairs thereof. Notwithstanding
anything to the contrary in this Agreement, for purposes of this Agreement, following the Closing, each of the Surviving Corporation and
its Subsidiaries will be deemed to be a Subsidiary of Parent.
(ooo)
“Superior Proposal” means any bona fide written Acquisition Proposal for an Acquisition Transaction on
terms that the Special Committee has determined in good faith, after consultation with its financial advisor and outside legal counsel,
(1) is reasonably likely to be consummated in accordance with its terms, taking into account all legal, regulatory and financing aspects
of the proposal (including certainty of closing) and the identity of the Person making the proposal and other aspects of the Acquisition
Proposal that the Special Committee deems relevant, and (2) if consummated, would be more favorable, from a financial point of view, to
the Company Stockholders (including the Unaffiliated Company Stockholders) (in their capacity as such) than the Merger (taking into account
any revisions to this Agreement made or proposed in writing by Parent prior to the time of such determination). For purposes of the reference
to an “Acquisition Proposal” in this definition, all references to “15%” in the definition of “Acquisition
Transaction” will be deemed to be references to “50%.”
(ppp)
“Tax” means any United States federal, state, local and non-United States taxes, assessments and similar governmental
charges and impositions in the nature of taxes (including taxes based upon or measured by gross receipts, income, profits, sales, use
and occupation and value added, ad valorem, transfer, franchise, withholding, payroll, employment, excise and property taxes), together
with all interest, penalties and additions imposed with respect to such amounts imposed by any Governmental Authority.
(qqq)
“Transaction Litigation” means any Legal Proceeding commenced or threatened by any Person (including any current
or former holder of Company Capital Stock or any other securities of any member of the Company Group) against a Party or any of its Subsidiaries
or any of its or their Representatives or otherwise relating to, involving or affecting such Party or any of its Subsidiaries or any of
its or their Representatives, in each case in connection with, arising from or otherwise relating to or regarding the Merger or any other
transaction contemplated by this Agreement, including any Legal Proceeding alleging or asserting any misrepresentation or omission in
the Proxy Statement, the Schedule 13E-3, any Other Required Company Filing or any other communications to the Company Stockholders, other
than any Legal Proceedings among the Parties related to this Agreement.
(rrr)
“TSX” means the Toronto Stock Exchange and any successor stock exchange.
(sss)
“Unaffiliated Company Stockholders” means the Company Stockholders other than (i) Parent, Merger Sub and their
Affiliates, (ii) any members of the Company Board who are employees of Parent or its Affiliates, (iii) any officer of the Company and
(iv) any member of any of the foregoing’s “immediate family” (as defined in Rule 16a-1 of the Exchange Act), or any
“affiliate” or “associate” (as defined in Rule 12b-2 of the Exchange Act) of any of the foregoing.
(ttt)
“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988 and any similar foreign, state
or local law, regulation or ordinance.
(uuu)
“Willful and Material Breach” means, with respect to any covenant, representation, warranty or other agreement
set forth in this Agreement, a material breach that is a consequence of an act or failure to act undertaken or omitted to be taken by
the breaching Party with the actual or constructive knowledge (which shall be deemed to include knowledge of facts that a Person acting
reasonably should have known, based on reasonable due inquiry) that the taking of such act or failure to take such act would, or would
reasonably be expected to, cause, or constitute a breach of the relevant covenant, representation, warranty or other agreement.
1.2
Additional Definitions. The following capitalized terms have the respective meanings given to them in the respective Sections
of this Agreement set forth opposite each of the capitalized terms below:
Term |
Section
Reference |
401(k) Plan |
6.10(f) |
Advisor |
3.3(c) |
Agreement |
Preamble |
Alternative Acquisition Agreement |
5.3(a) |
Buyer Parties |
Preamble |
Bylaws |
3.1 |
Capitalization Date |
3.7(a) |
Certificate of Merger |
2.2 |
Certificates |
2.9(c) |
Charter |
2.5(a) |
Chosen Courts |
9.10 |
Closing |
2.3 |
Closing Date |
2.3 |
Collective Bargaining Agreement |
3.19(a) |
Company |
Preamble |
Company Board Recommendation |
3.3(a) |
Company Board Recommendation Change |
5.3(c)(i) |
Company Disclosure Letter |
Article III |
Company Equity Awards |
3.18(j)3.7(b) |
Company Incentive Programs |
6.10(f) |
Company Option Consideration |
2.8(e) |
Company PSA Consideration |
2.8(b) |
Company PSU Consideration |
2.8(d) |
Company RSA Consideration |
2.8(a) |
Company RSU Consideration |
2.8(c) |
Company SEC Reports |
3.9 |
Company Securities |
3.7(c) |
Company Stockholder Meeting |
6.4(a) |
Company Termination Fee |
8.3(b)(i) |
Confidentiality Agreement |
9.4 |
Consent |
3.6 |
Copyrights |
1.1(oo) |
D&O Insurance |
6.9(c) |
DCP |
6.10(g) |
Debt Financing |
6.5(a) |
Debt Offer |
6.5(c) |
DGCL |
Recitals |
Discharge |
6.5(c) |
Dissenting Company Shares |
2.7(c)(i) |
DTC |
2.9(d) |
DTC Payment |
2.9(d) |
EDGAR |
3.9 |
Effect |
1.1(p) |
Effective Time |
2.2 |
Electronic Delivery |
9.13 |
Employee Plan |
3.18(a) |
Enforceability Limitations |
3.2 |
ePrivacy Directive |
1.1(bb) |
ERISA Affiliate |
3.18(a) |
Exchange Fund |
2.9(b) |
GDPR |
1.1(bb) |
Go Shop Period |
5.3(a) |
Government Closure |
6.2(a) |
Indemnified Persons |
6.9(a) |
Intervening Event |
5.3(d)(i) |
IP Contracts |
3.16(b) |
Lease |
3.14(b) |
Leased Real Property |
3.14(b) |
Marks |
1.1(oo) |
Material Relationships |
1.1(ss)(ii) |
Maximum Annual Premium |
6.9(c) |
Merger |
Recitals |
Merger Sub |
Preamble |
New Plans |
6.10(d) |
No Shop Period Start Date |
5.3(a) |
Notice Period |
5.3(d)(ii)(3) |
Old Plans |
6.10(d) |
Other Required Company Filing |
6.3(b) |
Other Required Parent Filing |
6.3(d) |
Owned Company Share |
2.7(a)(iii) |
Owned Real Property |
3.14(a) |
Parent |
Preamble |
Parent 401(k) Plan |
6.10(f) |
Parent Disclosure Letter |
Article IV |
Party |
Preamble |
Patents |
1.1(oo) |
Payment Agent |
2.9(a) |
Per Share Price |
2.7(a)(ii) |
Permits |
3.20 |
Proxy Statement |
6.3(a) |
Real Property |
3.14(b) |
SEC Reports |
Article III |
Redemption |
6.5(c) |
Requisite Stockholder Approval |
3.4 |
Schedule 13E-3 |
6.3(b) |
Service Proration |
6.10(f) |
Special Committee |
Recitals |
Sublease |
3.14(c) |
Surviving Corporation |
2.1 |
Tax Returns |
3.17(a) |
Termination Date |
8.1(c) |
Uncertificated Shares |
2.9(c) |
Voting Agreement |
Recitals |
1.3
Certain Interpretations.
(a)
When a reference is made in this Agreement to an Article or a Section, such reference is to an Article or a Section of this Agreement
unless otherwise indicated, and references to “paragraphs” or “clauses” are to separate paragraphs or clauses
of the Section or subsection in which the reference occurs. When a reference is made in this Agreement to a Schedule or Exhibit, such
reference is to a Schedule or Exhibit to this Agreement, as applicable, unless otherwise indicated.
(b)
When used herein, (i) the words “hereof,” “herein” and “herewith” and words of similar import
will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement;
and (ii) the words “include,” “includes” and “including” will be deemed in each case to be followed
by the words “without limitation.” When used herein, the phrase “the date hereof” means “the date of this
Agreement.”
(c)
Unless the context otherwise requires, “neither,” “nor,” “any,” “either” and “or”
are not exclusive.
(d)
The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends,
and does not simply mean “if.”
(e)
When used in this Agreement, references to “$” or “Dollars” are references to U.S. dollars.
(f)
The meaning assigned to each capitalized term defined and used in this Agreement is equally applicable to both the singular and
the plural forms of such term, and words denoting any gender include all genders. Where a word or phrase is defined in this Agreement,
each of its other grammatical forms has a corresponding meaning.
(g)
When reference is made to any party to this Agreement or any other agreement or document, such reference includes such Party’s
successors and permitted assigns. References to any Person include the successors and permitted assigns of that Person.
(h)
Unless the context otherwise requires, all references in this Agreement to the Subsidiaries of a Person will be deemed to include
all direct and indirect Subsidiaries of such entity.
(i)
When used herein, references to “ordinary course” or “ordinary course of business” will be construed to
mean “ordinary course of business, consistent with past practices.”
(j)
A reference to any specific legislation or to any provision of any legislation includes any amendment to, and any modification,
re-enactment or successor thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments
issued thereunder or pursuant thereto, except that, for purposes of any representations and warranties in that Agreement that are made
as a specific date, references to any specific legislation will be deemed to refer to such legislation or provision (and all rules, regulations
and statutory instruments issued thereunder or pursuant thereto) as of such date. A reference to “law” will refer to any federal,
state, local or foreign legislation, statute, law (including common law), ordinance, rule, regulation, code, directive, determination
or stock exchange listing requirement, as applicable, and “order” will refer to any decree, ruling, judgment, injunction or
other order in any Legal Proceedings by or with any Governmental Authority. References to any agreement or Contract are to that agreement
or Contract as amended, modified or supplemented from time to time, and any exhibits, schedules, annexes, statements of work, riders and
other documents attached thereto.
(k)
All accounting terms used herein will be interpreted, and all accounting determinations hereunder will be made, in accordance with
GAAP. An item arising with respect to a specific representation or warranty will be deemed to be “reflected on” or “set
forth in” a balance sheet or financial statements, to the extent that any such phrase appears in such representation or warranty,
if (i) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statements that is specifically
related to such item; or (ii) such item is specifically set forth on the balance sheet or financial statements or is specifically set
forth in the notes thereto (provided that an amount with respect to such item is included in such notes), in each case of clauses
(i) and (ii), if an amount is so shown or set forth on such balance sheet or financial statement or notes thereto, solely to the extent
of such amount.
(l)
The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and will not affect
or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.
(m)
The measure of a period of one month or year for purposes of this Agreement will be the date of the following month or year corresponding
to the starting date. If no corresponding date exists, then the end date of such period being measured will be the next actual date of
the following month or year (for example, one month following May 18 is June 18 and one month following May 31 is July 1). When calculating
the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period will be excluded. References to “from” or “through” any
date mean, unless otherwise specified, from and including or through and including such date, respectively.
(n)
The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Agreement and therefore
waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document
will be construed against the Party drafting such agreement or document.
(o)
No summary of this Agreement or any Exhibit or Schedule delivered herewith prepared by or on behalf of any Party will affect the
meaning or interpretation of this Agreement or such Exhibit or Schedule.
(p)
The information contained in this Agreement and in the Company Disclosure Letter and Parent Disclosure Letter is disclosed solely
for purposes of this Agreement, and no information contained herein or therein will be deemed to be an admission by any Party to any third
Person of any matter whatsoever, including (i) any violation of law or breach of contract; or (ii) that such information is
material or that such information is required to be referred to or disclosed under this Agreement. Nothing in the Company Disclosure Letter
constitutes an admission against the Company’s interest or represents the Company’s legal position or legal rights on the
matter so disclosed. No reference in this Agreement to dollar amount thresholds will be deemed to be evidence of a Company Material Adverse
Effect or materiality.
(q)
The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit
of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 8.5
without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent
an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Consequently,
Persons other than the Parties may not rely on the representations and warranties in this Agreement as characterizations of actual facts
or circumstances as of the date hereof or as of any other date.
(r)
Documents or other information or materials will be deemed to have been “made available,” “furnished,”
“provided” or “delivered” by the Company if such documents, information or materials have been physically or electronically
delivered to the relevant Party prior to the date of this Agreement, including by being posted to a virtual data room managed by the Company
at www.cscglobal.com or to the Company internal lease database prior to 12:00 p.m. Eastern time on January 15, 2024 or filed with or furnished
to the SEC and available on EDGAR.
(s)
References to “writing” mean the representation or reproduction of words, symbols or other information in a visible
form by any method or combination of methods, whether in electronic form or otherwise, and including writings delivered by Electronic
Delivery. “Written” will be construed in the same manner.
Article II
THE MERGER
2.1
The Merger. Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of the
DGCL, at the Effective Time, (a) Merger Sub will be merged with and into the Company; (b) the separate corporate existence of
Merger Sub will thereupon cease; and (c) the Company will continue as the surviving corporation of the Merger. The Company, as the
surviving corporation of the Merger, is sometimes referred to herein as the “Surviving Corporation.”
2.2
The Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Parent,
Merger Sub and the Company will cause the Merger to be consummated pursuant to the DGCL by filing a certificate of merger in customary
form and substance (the “Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance
with the applicable provisions of the DGCL (the time of such filing and acceptance for record by the Secretary of State of the State of
Delaware, or such later time as may be agreed in writing by Parent, Merger Sub and the Company and specified in the Certificate of Merger,
being referred to herein as the “Effective Time”).
2.3
The Closing. The consummation of the Merger (the “Closing”) shall take place by the remote exchange
of electronic copies of documents and signatures (including by Electronic Delivery) on a date to be agreed upon by Parent and the Company
that is no later than (a) the second Business Day after the satisfaction or waiver (to the extent permitted hereunder) of the last to
be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied
at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions); or (b) such other
time, location and/or date as Parent and the Company mutually agree in writing. The date on which the Closing actually occurs is referred
to as the “Closing Date.”
2.4
Effect of the Merger. At the Effective Time, the effect of the Merger will be as provided in this Agreement and the applicable
provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all (a) of the
property, rights, privileges, powers and franchises of the Company and Merger Sub will vest in the Surviving Corporation; and (b) debts,
liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.
2.5
Certificate of Incorporation and Bylaws.
(a)
Surviving Corporation Certificate of Incorporation. At the Effective Time, subject to the provisions of Section 6.9(a),
the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Charter”), will be amended and
restated in its entirety to read as set forth in Exhibit A attached hereto, and such amended and restated certificate of incorporation
will become the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with the applicable provisions
of the DGCL and such certificate of incorporation.
(b)
Surviving Corporation Bylaws. At the Effective Time, subject to the provisions of Section 6.9(a), the bylaws of the
Company will be amended and restated in their entirety to read as the bylaws of Merger Sub until thereafter amended in accordance with
the applicable provisions of the DGCL, the certificate of incorporation of the Surviving Corporation and such bylaws.
2.6
Directors and Officers.
(a)
Directors of the Surviving Corporation. At the Effective Time, the initial directors of the Surviving Corporation will be
the directors of Merger Sub as of immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation
and bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier
death, resignation or removal.
(b)
Officers of the Surviving Corporation. At the Effective Time, the initial officers of the Surviving Corporation will be
the officers of the Company as of immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation
and bylaws of the Surviving Corporation until their respective successors are duly appointed or until their earlier death, resignation
or removal.
2.7
Effect of Merger on Company Capital Stock.
(a)
Company Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Buyer Parties,
the Company or the holders of any of the following securities, the following will occur:
(i)
each share of common stock, par value $0.001 per share, of Merger Sub that is outstanding as of immediately prior to the Effective
Time will be converted into one validly issued, fully paid
and nonassessable
share of common stock of the Surviving Corporation, and thereupon each certificate representing ownership of such shares of common stock
of Merger Sub will thereafter represent ownership of shares of common stock of the Surviving Corporation;
(ii)
each share of Company Common Stock that is outstanding as of immediately prior to the Effective Time (other than Owned Company
Shares or Dissenting Company Shares, and other than Company RSAs and Company PSAs, which will be treated in accordance with Section 2.8)
will be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal to $9.55, without interest
thereon (the “Per Share Price”), in accordance with the provisions of Section 2.9 (or in the case of a lost, stolen
or destroyed certificate, upon delivery of an affidavit (and bond, if required) in accordance with the provisions of Section 2.11);
(iii)
each share of Company Common Stock that is (A) held by the Company Group; (B) owned by the Buyer Parties; or (C) owned
by any direct or indirect Subsidiary of the Buyer Parties as of immediately prior to the Effective Time (each, an “Owned Company
Share”) shall remain issued and outstanding as a share of common stock of the Surviving Corporation; and
(iv)
each share of Series D Convertible Preferred Stock that is outstanding as of immediately prior to the Effective Time shall remain
issued and outstanding as a share of Series D Convertible Preferred Stock of the Surviving Corporation, on the terms set forth in the
Series D Convertible Preferred Stock Certificate of Designation.
(b)
Adjustment to the Per Share Price. The Per Share Price will be adjusted appropriately (and subject to the terms of the Charter)
to reflect the effect of any stock split, reverse stock split, stock distribution or dividend (including any dividend or other distribution
of securities convertible into Company Capital Stock), reorganization, recapitalization, reclassification, combination, exchange of shares
or other similar change with respect to Company Capital Stock occurring on or after the date hereof and prior to the Effective Time.
(c)
Statutory Rights of Appraisal.
(i)
Notwithstanding anything to the contrary set forth in this Agreement, all shares of Company Common Stock that are issued and outstanding
as of immediately prior to the Effective Time and held by Company Stockholders who shall have neither voted in favor of the Merger nor
consented thereto in writing and who shall have properly and validly exercised their statutory rights of appraisal in respect of such
shares of Company Common Stock in accordance with Section 262 of the DGCL (such shares being referred to collectively as the “Dissenting
Company Shares” until such time as the holder thereof fails to perfect, withdraws or otherwise loses such holder’s appraisal
rights under the Laws of the State of Delaware with respect to such shares) will not be converted into, or represent the right to receive,
the Per Share Price pursuant to this Section 2.7. Holders of Dissenting Company Shares will be entitled to receive payment of the appraised
value of such Dissenting Company Shares in accordance with the provisions of Section 262 of the DGCL (and in such case, at the Effective
Time, the Dissenting Company Shares will no longer be outstanding and will automatically be canceled and cease to exist, and each holder
of Dissenting Company Shares will cease to have any rights with regard thereto except such holder’s right to receive the appraised
value of such Dissenting Company Shares to the extent afforded by Section 262 of the DGCL), except that all Dissenting Company Shares
held by Company Stockholders who shall have failed to perfect or who shall have effectively withdrawn or lost their rights to appraisal
of such Dissenting Company Shares pursuant to Section 262 of the DGCL will cease to be Dissenting Company Shares and will thereupon
be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Per Share
Price, without interest thereon,
upon surrender
of the Certificates or Uncertificated Shares that formerly evidenced such shares of Company Common Stock in the manner provided in Section 2.9.
(ii)
The Company will give Parent (A) prompt notice of any demands for appraisal received by the Company, withdrawals of such demands
and any other instruments served pursuant to the DGCL and received by the Company in respect of Dissenting Company Shares; and (B) the
opportunity to participate in all negotiations and Legal Proceedings with respect to demands for appraisal pursuant to the DGCL in respect
of Dissenting Company Shares. The Company may not, except with the prior written consent of Parent, make any payment with respect to any
demands for appraisal or settle or offer to settle any such demands for payment in respect of Dissenting Company Shares. For purposes
of this Section 2.7(c)(ii), “participate” means that Parent will be kept apprised of proposed strategy and other significant
decisions with respect to demands for appraisal pursuant to the DGCL in respect of Dissenting Company Shares (to the extent that the attorney-client
privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with
respect to such demands but will not be afforded any decision-making power or other authority over such demands except for the payment,
settlement or compromise consent set forth above.
2.8
Equity Awards.
(a)
Company RSAs. At the Effective Time, by virtue of the Merger, each Company RSA, whether vested or unvested, that is outstanding
as of immediately prior to the Effective Time shall be fully vested, cancelled and automatically converted, without any required action
on the part of the holder thereof, into the right to receive an amount in cash equal to the product of (A) the aggregate number of shares
of Company Common Stock subject to such Company RSA, multiplied by (B) the Per Share Price, subject to any applicable withholding Taxes
payable in respect thereof (the “Company RSA Consideration”).
(b)
Company PSAs. At the Effective Time, by virtue of the Merger, each Company PSA, whether vested or unvested, that is outstanding
as of immediately prior to the Effective Time shall be fully vested, cancelled and automatically converted, without any required action
on the part of the holder thereof, into the right to receive an amount in cash equal to the product of (A) the aggregate number of shares
of Company Common Stock subject to such Company PSA (with any performance conditions deemed to be earned based on “target”
performance), multiplied by (B) the Per Share Price, subject to any applicable withholding Taxes payable in respect thereof (the
“Company PSA Consideration”).
(c)
Company RSUs. At the Effective Time, by virtue of the Merger, each Company RSU, whether vested or unvested, that is outstanding
as of immediately prior to the Effective Time shall be fully vested, cancelled and automatically converted, without any required action
on the part of the holder thereof, into the right to receive an amount in cash equal to the product of (A) the aggregate number of shares
of Company Common Stock subject to such Company RSU (together with any accrued and unpaid dividends or dividend equivalents corresponding
to such Company RSU), multiplied by (B) the Per Share Price, subject to any applicable withholding Taxes payable in respect thereof
(the “Company RSU Consideration”).
(d)
Company PSUs. At the Effective Time, by virtue of the Merger, each Company PSU, whether vested or unvested, that is outstanding
as of immediately prior to the Effective Time shall be fully vested, cancelled and automatically converted, without any required action
on the part of the holder thereof, into the right to receive an amount in cash equal to the product of (A) the aggregate number of shares
of Company Common Stock subject to such Company PSU (together with any accrued and unpaid dividends or dividend equivalents corresponding
to such Company PSU) (with any performance conditions deemed to be earned based on the greater of “target” or “actual”
performance, as measured through the Effective Time and extrapolated over the full performance period; provided, that, if the Effective
Time occurs on or prior to December 31, 2024, the performance conditions for the Company PSUs granted in 2024 shall be deemed to be
earned based
on “target” performance), multiplied by (B) the Per Share Price, subject to any applicable withholding Taxes payable
in respect thereof (the “Company PSU Consideration”).
(e)
Company Options. At the Effective Time, by virtue of the Merger, each Company Option, whether vested or unvested, that is
unexpired, unexercised, and outstanding as of immediately prior to the Effective Time shall be fully vested, cancelled and automatically
converted, without any required action on the part of the holder thereof, into the right to receive an amount in cash equal to the product
of (A) the aggregate number of shares of Company Common Stock subject to such Company Option, multiplied by (B) the excess, if any, of
the Per Share Price over the applicable per share exercise price under such Company Option, subject to any applicable withholding Taxes
payable in respect thereof (the “Company Option Consideration”). Notwithstanding the foregoing, any Company Option
that is not an In-the-Money Company Option shall be cancelled immediately upon the Effective Time pursuant to this Section 2.8(e) without
payment or consideration.
(f)
Payment Procedures. The Surviving Corporation or its Subsidiaries, as applicable, shall pay (and Parent shall cause the
Surviving Corporation or its Subsidiaries, as applicable, to so pay) or, at the Company’s election and with Parent’s consent,
a payroll agent identified by the Company shall pay), no later than the first payroll date following the Closing Date, the aggregate Company
Option Consideration, Company RSA Consideration, Company PSA Consideration, Company RSU Consideration, and Company PSU Consideration,
as applicable, payable with respect to each of the Company Options, Company RSAs, Company PSAs, Company RSUs and Company PSUs, respectively,
through the Company Group’s payroll (or, at the Company’s election and with Parent’s consent, through a payroll agent
identified by the Company) to the applicable holders of such Company Options, Company RSAs, Company PSAs, Company RSUs, and Company PSUs.
The Company will only be permitted, with Parent’s consent, to identify a third-party payroll agent pursuant to the foregoing to
the extent such payroll agent is capable of, and agrees to, handle all applicable tax withholding related to the payments to be made pursuant
to the immediately preceding sentence. Notwithstanding the foregoing, if any payment owed to such holders cannot be made through the Company
Group’s payroll system or a payroll provider or agent, then the Company Group (or, if elected by the Company and with Parent’s
consent, a paying agent that is capable of processing all related) will issue a check for such payment to such holder, which check will
be sent by overnight courier to such holder promptly following the Closing Date (but in no event later than the first payroll date following
the Closing Date) or, if paid by a paying agent, through the process identified by such paying agent and paid no later than March 15th
of the calendar year following the calendar year in which the Effective Time occurs).
(g)
Further Actions. Prior to the Effective Time, the Company will pass resolutions approving and take other actions as may
be reasonably necessary or required to effect the cancellation of Company Options, Company PSUs, Company RSUs, Company RSAs and Company
PSAs upon the Effective Time, and to give effect to this Section 2.8 (including the satisfaction of the requirements of Rule 16b-3(e)
promulgated under the Exchange Act). The Company Equity Plans will terminate as of the Effective Time, and the provisions in any other
Employee Plan or Contract providing for the issuance or grant of any other interest in respect of the capital stock or other equity interests
of the Company Group will be cancelled as of the Effective Time, and the Company will take all action necessary to effect the foregoing.
The Company will use its reasonable best efforts to ensure that following the Effective Time, no participant in the Company Equity Plans
or other Employee Plan will have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any
of their respective Subsidiaries.
2.9
Exchange of Certificates.
(a)
Payment Agent. Prior to the Closing, (i) Parent will select a bank or trust company reasonably acceptable to the Company
to act as the payment agent for the Merger (the “Payment Agent”); and
(ii) Parent
and one or more of its Subsidiaries will enter into a payment agent agreement, in form and substance reasonably acceptable to the Company,
with such Payment Agent.
(b)
Exchange Fund. At or prior to the Closing, Parent will deposit (or cause to be deposited), on behalf of Merger Sub, with
the Payment Agent, by wire transfer of immediately available funds, for payment to the holders of shares of Company Common Stock pursuant
to Section 2.7, an amount of cash equal to the aggregate consideration to which such holders become entitled pursuant to Section 2.7.
Until disbursed in accordance with the terms and conditions of this Agreement, such cash will be invested by the Payment Agent, as directed
by Parent or the Surviving Corporation, in (i) obligations of or fully guaranteed by the United States or any agency or instrumentality
thereof and backed by the full faith and credit of the United States with a maturity of no more than 30 days; (ii) commercial paper
obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively;
or (iii) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding
$1,000,000,000 (based on the most recent financial statements of such bank that are then publicly available) (such cash and any proceeds
thereon, the “Exchange Fund”). To the extent that (A) there are any losses with respect to any investments of
the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Payment Agent to promptly pay
the cash amounts contemplated by Section 2.7; or (C) all or any portion of the Exchange Fund is unavailable for the prompt payment
of the cash amounts contemplated by Section 2.7 for any reason, Parent will, or will cause the Surviving Corporation or one of its
Subsidiaries to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all
times fully available for distribution and maintained at a level sufficient for the Payment Agent to make the payments contemplated by
Section 2.7. Any income from investment of the Exchange Fund will be payable, as directed by Parent, to Parent, the Surviving Corporation,
or otherwise as Parent directs.
(c)
Payment Procedures. Promptly following the Closing (and in any event within three Business Days following the Closing),
Parent and the Surviving Corporation will cause the Payment Agent to mail to each holder of record (as of immediately prior to the Effective
Time) of (i) a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company
Capital Stock (other than Dissenting Company Shares and Owned Company Shares, as applicable) (the “Certificates”);
or (ii) uncertificated shares of Company Capital Stock (other than Dissenting Company Shares and Owned Company Shares, as applicable)
(the “Uncertificated Shares”): (A) in the case of holders of Certificates, a letter of transmittal in customary
form (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery
of the Certificates to the Payment Agent); and (B) instructions for use in effecting the surrender of the Certificates and Uncertificated
Shares, as applicable, in exchange for the Per Share Price, payable in respect thereof pursuant to Section 2.7. Upon surrender of Certificates
for cancellation to the Payment Agent, together with such letter of transmittal, duly completed and validly executed in accordance with
the instructions thereto, the holders of such Certificates will be entitled to receive in exchange therefor an amount in cash (less any
applicable withholding Taxes payable in respect thereof) equal to the product obtained by multiplying (1) the aggregate number of shares
of Company Capital Stock represented by such Certificate; by (2) the Per Share Price, and the Certificates so surrendered will forthwith
be cancelled. Upon receipt of an “agent’s message” by the Payment Agent (or such other evidence, if any, of transfer
as the Payment Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the holders of such Uncertificated
Shares will be entitled to receive in exchange therefor an amount in cash (less any applicable withholding Taxes payable in respect thereof)
equal to the product obtained by multiplying (x) the aggregate number of shares of Company Capital Stock represented by such holder’s
transferred Uncertificated Shares; by (y) the Per Share Price, and the transferred Uncertificated Shares so surrendered will be cancelled.
The Payment Agent will accept such Certificates and transferred Uncertificated Shares upon compliance with such reasonable terms and conditions
as the Payment Agent may impose to cause an orderly exchange thereof in accordance with normal exchange practices. No interest will be
paid or accrued for the benefit of holders of the Certificates and Uncertificated Shares on the Per Share Price,
payable
upon the surrender of such Certificates and Uncertificated Shares pursuant to this Section 2.9(c). Until so surrendered, outstanding
Certificates and Uncertificated Shares will be deemed from and after the Effective Time to evidence only the right to receive the Per
Share Price without interest thereon, payable in respect thereof pursuant to Section 2.7. Notwithstanding anything to the contrary in
this Agreement, no holder of Uncertificated Shares will be required to provide a Certificate or an executed letter of transmittal to
the Payment Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 2.7.
(d)
DTC Payment. Prior to the Closing, Parent and the Company will cooperate to establish procedures with the Payment Agent
and the Depository Trust Company (“DTC”) with the objective that (i) if the Closing occurs at or prior to 11:30
a.m., Eastern time, on the Closing Date, then the Payment Agent will transmit to DTC or its nominees on the Closing Date an amount in
cash, by wire transfer of immediately available funds, equal to (A) the number of shares of Company Common Stock (other than Owned
Company Shares and Dissenting Company Shares) held of record by DTC or such nominee immediately prior to the Effective Time; multiplied
by (B) the Per Share Price (such amount, the “DTC Payment”); and (ii) if the Closing occurs after 11:30 a.m.,
Eastern time, on the Closing Date, then the Payment Agent will transmit the DTC Payment to DTC or its nominees on the first Business Day
after the Closing Date.
(e)
Transfers of Ownership. Subject, in all cases, to the terms and conditions of the Charter in respect of Company Capital
Stock, if a transfer of ownership of shares of Company Capital Stock is not registered in the stock transfer books or ledger of the Company
or if the Per Share Price is to be paid in a name other than that in which the Certificates or Uncertificated Shares surrendered or transferred
in exchange therefor are registered in the stock transfer books or ledger of the Company, the Per Share Price may be paid to a Person
other than the Person in whose name the Certificate or Uncertificated Share so surrendered or transferred is registered in the stock transfer
books or ledger of the Company, as applicable, only if, in the case of shares of Company Capital Stock represented by Certificates, such
Certificate is properly endorsed and otherwise in proper form for surrender and transfer, or in the case of Uncertificated Shares, a proper
transfer instruction is presented, and in either case the Person requesting such payment has paid to Parent (or as directed by Parent)
any transfer Taxes required by reason of the payment of the Per Share Price to a Person other than the registered holder of such Certificate,
or established to the satisfaction of Parent (or any agent designated by Parent) that such transfer Taxes have been paid or are otherwise
not payable.
(f)
No Liability. Notwithstanding anything to the contrary set forth in this Agreement, none of the Payment Agent, Parent, the
Surviving Corporation or any other Party will be liable to a holder of shares of Company Capital Stock, for any amount properly paid to
a public official pursuant to any applicable abandoned property, escheat or similar law.
(g)
Distribution of Exchange Fund to the Surviving Corporation. Any portion of the Exchange Fund that remains undistributed
to the holders of the Certificates or Uncertificated Shares on the date that is one year after the Closing Date, as applicable, will be
delivered to the Surviving Corporation (or as directed by the Surviving Corporation) upon demand, and any holders of shares of Company
Capital Stock that were issued and outstanding immediately prior to the Effective Time, who have not theretofore surrendered or transferred
their Certificates or Uncertificated Shares representing such shares of Company Capital Stock, for exchange pursuant to this Section 2.9
will thereafter look for payment of the Per Share Price without interest thereon, payable in respect of the shares of Company Capital
Stock represented by such Certificates or Uncertificated Shares solely to the Surviving Corporation (subject to abandoned property, escheat
or similar laws), solely as general creditors thereof, for any claim to the Per Share Price, to which such holders may be entitled pursuant
to Section 2.7. Any amounts remaining unclaimed by holders of any such Certificates or Uncertificated Shares two years after the Closing
Date, or at such earlier date as is immediately prior to the time at which such amounts would otherwise escheat to, or become property
of, any Governmental Authority, will, to the extent permitted by applicable law, become the property of the Surviving Corporation, free
and clear of
any claims
or interest of any such holders (and their successors, assigns or personal representatives) previously entitled thereto.
2.10
No Further Ownership Rights in Company Capital Stock. Except as otherwise provided in Section 2.7, from and after the Effective
Time, (a) all shares of Company Capital Stock will no longer be outstanding and will automatically be converted or cancelled and
retired, as applicable, in accordance with Section 2.7 and cease to exist; and (b) each holder of Certificates or Uncertificated
Shares theretofore representing any shares of Company Capital Stock will cease to have any rights with respect thereto, except the right
to receive the Per Share Price, payable therefor in accordance with Section 2.7, or in the case of Dissenting Company Shares, the rights
pursuant to Section 2.7(c). The Per Share Price paid in accordance with the terms of this Article II will be deemed to have
been paid in full satisfaction of all rights pertaining to such shares of Company Capital Stock. From and after the Effective Time, there
will be no further registration of transfers on the records of the Surviving Corporation of shares of Company Capital Stock that were
issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary settlement
procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented
to the Surviving Corporation for any reason, they will (subject to compliance with the exchange procedures of Section 2.9(c)) be
cancelled and exchanged as provided in this Article II.
2.11
Lost, Stolen or Destroyed Certificates. In the event that any Certificates have been lost, stolen or destroyed, the Payment
Agent will issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Share Price payable
in respect thereof pursuant to Section 2.7. Parent or the Payment Agent may, in its discretion and as a condition precedent to the payment
of such Per Share Price, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such customary amount
as it may direct as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Payment Agent with respect
to the Certificates alleged to have been lost, stolen or destroyed.
2.12
Required Withholding. Each of the Payment Agent, Parent, the Company, the Surviving Corporation and any other withholding
agent will be entitled to deduct and withhold from any cash amounts payable pursuant to this Agreement, such amounts as are required to
be deducted or withheld therefrom pursuant to any Tax laws. To the extent that such amounts are so deducted or withheld and paid over
to the appropriate Governmental Authority, such amounts will be treated for all purposes of this Agreement as having been paid to the
Person to whom such amounts would otherwise have been paid.
2.13
No Dividends or Distributions. No dividends or other distributions with respect to the capital stock of the Surviving Corporation
with a record date on or after the Effective Time will be paid to the holder of any unsurrendered Certificates or Uncertificated Shares.
2.14
Necessary Further Actions. If, at any time after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of the Company or Merger Sub, then the directors and officers of the Company and Merger Sub
will take all such lawful and necessary action.
Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
With respect to any Section
of this Article III, except (a) as disclosed in the reports, statements and other documents filed by the Company with the SEC
or furnished by the Company to the SEC, in each case, pursuant to the Exchange Act on or after January 4, 2021 and prior to the date hereof
(other than any disclosures contained or referenced therein under the captions “Risk Factors,” “Special Note Regarding
Forward-Looking
Statements,”
“Quantitative and Qualitative Disclosures About Market Risk” and any other disclosures contained or referenced therein of
information, factors or risks that are predictive, cautionary or forward-looking in nature) (the “SEC Reports”) (it
being acknowledged that nothing disclosed in the SEC Reports will be deemed to modify or qualify the representations and warranties set
forth in Section 3.7 or Section 3.12(a)(ii)); or (b) subject to the terms of Section 9.12, as set forth in the disclosure letter
delivered by the Company to the Buyer Parties on the date hereof (the “Company Disclosure Letter”), the Company hereby
represents and warrants to the Buyer Parties as follows:
3.1
Organization; Good Standing. The Company (a) is a corporation duly incorporated, validly existing and in good standing
pursuant to the DGCL; and (b) has the requisite corporate power and authority to conduct its business as it is presently being conducted
and to own, lease or operate its properties and assets. The Company is duly qualified to do business and is in good standing in each jurisdiction
where the character of its properties owned or leased or the nature of its activities make such qualification necessary, except where
the failure to be so qualified or in good standing would not have a Company Material Adverse Effect. The Company has made available to
Parent true, correct and complete copies of the Charter and the Amended and Restated Bylaws of the Company, as amended (the “Bylaws”).
The Company is not in violation of the Charter or the Bylaws.
3.2
Corporate Power; Enforceability. The Company has the requisite corporate power and authority to (a) execute and deliver
this Agreement; (b) perform its covenants and obligations hereunder; and (c) subject to receiving the Requisite Stockholder Approval,
consummate the Merger. The execution and delivery of this Agreement by the Company, the performance by the Company of its covenants and
obligations hereunder, and the consummation of the Merger have been duly authorized and approved by all necessary corporate action on
the part of the Company and no additional corporate actions on the part of the Company are necessary to authorize (i) the execution
and delivery of this Agreement by the Company; (ii) the performance by the Company of its covenants and obligations hereunder; or
(iii) subject to the receipt of the Requisite Stockholder Approval, the filing of the Certificate of Merger and the consummation
of the Merger. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery
by the Buyer Parties, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability (A) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting or relating to creditors’ rights generally; and (B) is subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law) (collectively, the “Enforceability Limitations”).
3.3
Company Board Approval; Fairness Opinion; Anti-Takeover Laws.
(a)
Special Committee Approval. The Special Committee has (i) determined that it is in the best interests of the Company
and the Unaffiliated Company Stockholders, and declared it advisable, to enter into this Agreement and consummate the Merger and the other
transactions contemplated by this Agreement, including the Voting Agreement, in accordance with the DGCL upon the terms and subject to
the conditions set forth herein; (ii) approved and adopted this Agreement and (iii) resolved to recommend that the Company Board approve
and adopt this Agreement.
(b)
Company Board Approval. The Company Board has (i) determined that it is in the best interests of the Company and the
Company Stockholders (including the Unaffiliated Company Stockholders), and declared it advisable, to enter into this Agreement and consummate
the Merger and the other transactions contemplated by this Agreement, including the Voting Agreement, in accordance with the DGCL upon
the terms and subject to the conditions set forth herein; (ii) approved and adopted the execution and delivery of this Agreement
by the Company, the performance by the Company of its covenants and other obligations hereunder,
and the
consummation of the Merger and the other transactions contemplated by this Agreement, including the Voting Agreement, in accordance with
the DGCL upon the terms and conditions set forth herein; and (iii) resolved to recommend that the Company Stockholders adopt this
Agreement in accordance with the DGCL (collectively, the “Company Board Recommendation”), which Company Board Recommendation
has not been withdrawn, rescinded or modified in any way as of the date hereof.
(c)
Fairness Opinion. The Special Committee and the Company Board have received the written opinion of Jefferies LLC (the “Advisor”),
to the effect that, as of the date of such opinion, and based upon and subject to the various limitations, qualifications, assumptions
and other matters set forth therein, the Per Share Price to be received by the Unaffiliated Company Stockholders pursuant to this Agreement
is fair, from a financial point of view, to such holders (it being understood and agreed that such written opinion is for the benefit
of the Special Committee and may not be relied upon by the Buyer Parties). The Company shall, following the execution of this Agreement
by all Parties, furnish an accurate, complete and confidential copy of said opinion to Parent solely for informational purposes.
(d)
Anti-Takeover Laws. Assuming that the representations of the Buyer Parties set forth in Section 4.6 and Section 4.10
are true and correct, the Company Board has taken all necessary actions so that the restrictions on business combinations set forth in
Section 203 of the DGCL and any other similar applicable “anti-takeover” law will not be applicable to the Merger, the
Voting Agreement or the other transactions contemplated by this Agreement or the Voting Agreement.
3.4
Requisite Stockholder Approval. Except for the affirmative vote of the holders of (a) a majority of the voting power of
the outstanding Company Capital Stock entitled to vote thereon, voting together as a single class to adopt and approve this Agreement
and the Merger and (b) a majority of the outstanding Company Common Stock held by the Unaffiliated Company Stockholders to adopt and approve
this Agreement and the Merger (the vote described in this clause (b), the “Unaffiliated Stockholder Approval” and,
together with the vote described in clause (a), the “Requisite Stockholder Approval”), no other vote of the holders
of any class or series of Company Capital Stock is necessary pursuant to applicable law, the Charter or the Bylaws to adopt and approve
this Agreement and consummate the Merger or the other transactions contemplated by this Agreement, including the Voting Agreement.
3.5
Non-Contravention. The execution and delivery of this Agreement by the Company, the performance by the Company of its covenants
and obligations hereunder, and the consummation of the Merger do not (a) violate or conflict with any provision of the Charter or
the Bylaws; (b) violate, conflict with, result in the breach of, constitute a default (or an event that, with notice or lapse of
time or both, would become a default) pursuant to, result in the termination of, accelerate the performance required by, or result in
a right of termination or acceleration pursuant to any Material Contract; (c) assuming compliance with the matters referred to in
Section 3.6 and, in the case of the consummation of the Merger, subject to obtaining the Requisite Stockholder Approval and the adoption
of this Agreement by the sole stockholder of Merger Sub, violate or conflict with any law or order applicable to the Company Group or
by which any of its properties or assets are bound; or (d) result in the creation of any lien (other than Permitted Liens) upon any
of the properties or assets of the Company Group, except in the case of each of clauses (b), (c) and (d) for such violations, conflicts,
breaches, defaults, terminations, accelerations or liens that would not have a Company Material Adverse Effect.
3.6
Requisite Governmental Approvals. No consent, approval, order or authorization of, filing or registration with, or notification
to (any of the foregoing, a “Consent”) any Governmental Authority is required on the part of the Company in connection
with (a) the execution and delivery of this Agreement by the Company; (b) the performance by the Company of its covenants and obligations
pursuant to this Agreement; or (c) the consummation of the Merger, except (i) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware and such filings with Governmental Authorities to satisfy the applicable laws of states
in which
the Company Group is qualified to do business; (ii) such filings and approvals as may be required by any federal or state securities
laws, including compliance with any applicable requirements of the Exchange Act; (iii) such filings as may be required under the rules
and regulations of Nasdaq, (iv) compliance with any applicable requirements of the HSR Act; and (v) such other Consents the
failure of which to obtain or make would not have a Company Material Adverse Effect.
3.7
Company Capitalization.
(a)
Capital Stock. The authorized capital stock of the Company consists of (i) 100,000,000 shares of Company Common Stock,
and (ii) 20,000,000 shares of Company Preferred Stock. As of 5:00 p.m., Eastern time, on January 12, 2024 (such time and date, the “Capitalization
Date”), (A) 51,602,340 shares of Company Common Stock were issued and outstanding; (B) no shares of Series A Convertible Preferred
Stock were issued and outstanding; (C) no shares of Series B Convertible Preferred Stock were issued and outstanding; (D) no shares of
Series C Convertible Preferred Stock were issued and outstanding; (E) 100 shares of Series D Convertible Preferred Stock were issued and
outstanding; and (F) 2,251,737 shares of Company Common Stock were held by the Company as treasury shares. All outstanding shares
of Company Common Stock are validly issued, fully paid, nonassessable and free of any preemptive rights. From the Capitalization Date
to the date hereof, the Company has not issued or granted any Company Securities other than pursuant to the exercise or settlement of
Company Equity Awards granted prior to the date hereof.
(b)
As of the Capitalization Date, after giving effect to the grants to be made effective as of January 16, 2024, the Company has 2,190,099
shares of Company Common Stock remaining available for issuance pursuant to the Company Equity Plans. As of the Capitalization Date, after
giving effect to the grants to be made effective as of January 16, 2024, there were outstanding the following (the “Company Equity
Awards”): (i) Company Options to acquire 925,000 shares of Company Common Stock, of which (A) 925,000 shares of Company Common
Stock are In-the-Money Company Options and (B) 0 shares of Company Common Stock are not In-the-Money Company Options, with a weighted
average exercise price of $7.12, (ii) Company RSAs with respect to 3,380,569 shares of Company Common Stock (including Company RSAs vesting
on January 15, 2024, for which shares of Company Common Stock have not yet been delivered), (iii) Company PSAs with respect to 150,000
shares of Company Common Stock (assuming satisfaction of applicable performance criteria at maximum levels), (iv) Company RSUs representing
the right to receive up to 17,523 shares of Company Common Stock (inclusive of the number of dividend equivalent units accrued thereon),
(v) Company PSUs granted prior to 2024 representing the right to receive up to 1,598,023 shares of Company Common Stock (assuming satisfaction
of applicable performance criteria at maximum levels, and inclusive of the number of dividend equivalent units accrued thereon) and (vi)
Company PSUs granted in 2024 representing the right to receive up to 243,900 shares of Company Common Stock (assuming satisfaction of
applicable performance criteria at target levels). The Company has made available to Parent (or will make available to Parent within thirty
(30) Business Days following the date of this Agreement), a true, correct and complete list, as of January 16, 2024, and with respect
to each outstanding Company Equity Award, of the name of the holder of such Company Equity Award, the grant date of such Company Equity
Award, and, to the extent applicable, the per share exercise price of such Company Equity Award.
(c)
Company Securities. Except as set forth in this Section 3.7, as of the Capitalization Date, there were (i) no
outstanding shares of capital stock of, or other equity or voting interest in (including voting debt), the Company; (ii) no outstanding
securities of the Company convertible into or exchangeable or exercisable for shares of capital stock of, or other equity or voting interest
(including voting debt) in, the Company; (iii) no outstanding options, warrants or other rights or binding arrangements to acquire from
the Company, or that obligate the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible
into or exchangeable for shares of capital stock of, or other equity or voting interest (including voting debt) in, the Company; (iv)
no obligations of the Company to grant, extend or enter into any
subscription,
warrant, right, convertible, exchangeable or exercisable security, or other similar Contract relating to any capital stock of, or other
equity or voting interest (including any voting debt) in, the Company; (v) no outstanding shares of restricted stock, restricted
stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities
or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock
of, or other securities or ownership interests in, the Company (the items in clauses (i), (ii), (iii), (iv) and (v), collectively with
the Company Capital Stock, the “Company Securities”); (vi) no voting trusts, proxies or similar arrangements
or understandings to which the Company is a party or by which the Company is bound with respect to the voting of any shares of capital
stock of, or other equity or voting interest in, the Company; (vii) except as provided in the Charter or the Bylaws, no obligations
or binding commitments of any character restricting the transfer of any shares of capital stock of, or other equity or voting interest
in, the Company to which the Company is a party or by which it is bound; and (viii) no other obligations by the Company to make any payments
based on the price or value of any Company Securities. The Company is not party to any Contract that obligates it to repurchase, redeem
or otherwise acquire any Company Securities. There are no accrued and unpaid dividends with respect to any outstanding shares of Company
Capital Stock. The Company does not have a stockholder rights plan in effect.
(d)
Other Rights. The Company is not a party to any Contract relating to the voting of, requiring registration of, or granting
any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any Company Securities.
3.8
Subsidiaries.
(a)
Subsidiaries. Section 3.8(a) of the Company Disclosure Letter contains a true, correct and complete list of the name,
jurisdiction of organization, and schedule of stockholders or equity holders (other than any member of the Company Group) of each Subsidiary
of the Company. Each Subsidiary of the Company (i) is duly organized, validly existing and in good standing pursuant to the laws
of its jurisdiction of organization; and (ii) has the requisite corporate (or similar) power and authority to carry on its business
as it is presently being conducted and to own, lease or operate its properties and assets, except where the failure to be so organized,
validly existing and in good standing would not have a Company Material Adverse Effect. Each Subsidiary of the Company is duly qualified
to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its
activities make such qualification necessary, except where the failure to be so qualified or in good standing would not have a Company
Material Adverse Effect. No Subsidiary of the Company is in violation of its charter, bylaws or other similar organizational documents,
except for such violations that would not have a Company Material Adverse Effect.
(b)
Capital Stock of Subsidiaries. All of the outstanding capital stock of, or other equity or voting interest in, each Subsidiary
of the Company (i) has been duly authorized, validly issued and is fully paid and nonassessable; and (ii) except for directors’
qualifying or similar shares, is owned, directly or indirectly, by the Company, free and clear of all liens (other than Permitted Liens)
and any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity
or voting interest) that would prevent such Subsidiary from conducting its business as of the Effective Time in substantially the same
manner that such business is conducted on the date hereof.
(c)
Other Securities of Subsidiaries. There are no outstanding (i) securities convertible into or exchangeable or exercisable
for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company; (ii) options, warrants or other
rights or arrangements obligating the Company Group to acquire from any Subsidiary of the Company, or that obligate any Subsidiary of
the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable
for, shares of capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company; or
(iii) obligations
of any Subsidiary of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security,
or other similar Contract relating to any capital stock of, or other equity or voting interest (including any voting debt) in, such Subsidiary
to any Person other than the Company or one of its Subsidiaries.
(d)
Other Investments. Other than equity securities held in the ordinary course of business for cash management purposes, the
Company does not own or hold the right to acquire any equity securities, ownership interests or voting interests (including voting debt)
of, or securities exchangeable or exercisable therefor, or investments in, any other Person.
3.9
Company SEC Reports. Since January 4, 2021, the Company has filed all forms, reports and documents with the SEC that have
been required to be filed by it pursuant to applicable laws prior to the date hereof (the “Company SEC Reports”). Each
Company SEC Report complied, as of its filing date, in all material respects with the applicable requirements of the Securities Act or
the Exchange Act, as the case may be, each as in effect on the date that such Company SEC Report was filed. True, correct and complete
copies of all Company SEC Reports are publicly available in the Electronic Data Gathering, Analysis and Retrieval database of the SEC
(“EDGAR”). As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of
such amended or superseded filing), each Company SEC Report did not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not
misleading. No Subsidiary of the Company is required to file any forms, reports or documents with the SEC.
3.10
Company Financial Statements; Internal Controls; Indebtedness.
(a)
Company Financial Statements. The consolidated financial statements (including any related notes and schedules) of the Company
Group filed with the Company SEC Reports (i) were prepared in accordance with GAAP (except as may be indicated in the notes thereto
or as otherwise permitted by Form 10-Q with respect to any financial statements filed on Form 10-Q); and (ii) fairly present, in
all material respects, the consolidated financial position of the Company Group as of the dates thereof and the consolidated results of
operations and cash flows for the periods then ended (subject, in the case of any financial statements filed on Form 10-Q, to normal year-end
adjustments). Except as have been described in the Company SEC Reports, there are no unconsolidated Subsidiaries of the Company or any
off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated by the
SEC.
(b)
Disclosure Controls and Procedures. The Company has established and maintains “disclosure controls and procedures”
and “internal control over financial reporting” (in each case as defined pursuant to Rule 13a-15 and Rule 15d-15
promulgated under the Exchange Act). The Company’s disclosure controls and procedures are reasonably designed to ensure that all
(i) material information required to be disclosed by the Company in the reports and other documents that it files or furnishes pursuant
to the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC;
and (ii) such material information is accumulated and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley
Act. The Company’s management has completed an assessment of the effectiveness of the Company’s internal control over financial
reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended January 1, 2023, and
such assessment concluded that such system was effective. Since January 4, 2021, the principal executive officer and principal financial
officer of the Company have made all certifications required by the Sarbanes-Oxley Act. Neither the Company nor its principal executive
officer or principal financial officer has received notice from any Governmental Authority challenging or questioning the accuracy, completeness,
form or manner of filing of such certifications.
(c)
Internal Controls. The Company has established and maintains a system of internal accounting controls that are designed
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance
with GAAP, including policies and procedures that (i) require the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the Company Group; (ii) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of
the Company Group are being made only in accordance with appropriate authorizations of the Company’s management and the Company
Board; and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the
assets of the Company Group. Neither the Company nor, to the Knowledge of the Company, the Company’s independent registered public
accounting firm has identified or been made aware of (A) any significant deficiency or material weakness in the system of internal
control over financial reporting utilized by the Company Group that has not been subsequently remediated; or (B) any fraud that involves
the Company’s management or other employees who have a role in the preparation of financial statements or the internal control over
financial reporting utilized by the Company Group. As of the date hereof, there are no outstanding or unresolved comments in comment letters
received from the SEC with respect to the Company SEC Reports.
3.11
No Undisclosed Liabilities. The Company Group has no liabilities of a nature required to be reflected or reserved against
on a balance sheet (or the notes thereto) of the Company Group prepared in accordance with GAAP, other than liabilities (a) reflected
or otherwise reserved against in the Audited Company Balance Sheet or in the consolidated financial statements of the Company Group (including
the notes thereto) included in the Company SEC Reports filed prior to the date hereof; (b) arising pursuant to this Agreement or
incurred in connection with the Merger; (c) incurred in the ordinary course of business on or after January 1, 2023; (d) liabilities
incurred in connection with the transactions contemplated by this Agreement and the process leading thereto; or (e) that would not
have, individually or in the aggregate, a Company Material Adverse Effect.
3.12
Absence of Certain Changes.
(a)
Absence of Company Material Adverse Effect. Since January 1, 2023 through the date of this Agreement, (i) the business of
the Company Group has been conducted, in all material respects, in the ordinary course of business and (ii) there has not occurred a Company
Material Adverse Effect.
(b)
Forbearance. Since January 1, 2023 through the date hereof, the Company has not taken any action that would be prohibited
by Sections 5.2(a), 5.2(b), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h), 5.2(n), 5.2(o), 5.2(r), 5.2(x), or 5.2(y) (to the extent related
to the foregoing subsections) if taken or proposed to be taken after the date hereof.
3.13
Material Contracts.
(a)
List of Material Contracts. Section 3.13(a) of the Company Disclosure Letter contains a true, correct and complete
list of all Material Contracts to or by which the Company Group is a party or is bound as of the date hereof (other than any Employee
Plans, and Material Contracts contemplated by clause (i) of the definition of Material Contract and any Material Contracts listed
in Section 3.18(a) of the Company Disclosure Letter), and a true, correct and complete copy of each Material Contract has been made
available to Parent.
(b)
Validity. Each Material Contract is valid and binding on the Company or each such Subsidiary of the Company party thereto
and is in full force and effect, and none of the Company, any of its Subsidiaries party thereto or, to the Knowledge of the Company, any
other party thereto is in breach of or default pursuant to any such Material Contract, except in each case as would not have a Company
Material Adverse
Effect.
No event has occurred that, with notice or lapse of time or both, would constitute such a breach or default pursuant to any Material
Contract by the Company Group, or, to the Knowledge of the Company, any other party thereto, except for such breaches and defaults that
would not have a Company Material Adverse Effect.
(c)
Contracts Restricting Business of the Company Group. Other than the Franchise Agreements and the Leases, to the Knowledge
of the Company, none of the Company or its Subsidiaries is party to a Contract containing any covenant or other provision (i) limiting
the right of the Company Group to engage in any material line of business or to compete with any Person in any line of business that is
material to the Company Group; (ii) prohibiting the Company Group from engaging in any business with any Person or levying a fine,
charge or other payment for doing so; or (iii) containing and limiting the right of the Company Group pursuant to any “most
favored nation” or “exclusivity” provisions, in each case other than any such Contracts that (1) may be cancelled
without material liability to the Company or its Subsidiaries upon notice of 90 days or less, or (2) are not material to the Company
Group, taken as a whole.
(d)
Notices from Material Relationships. To the Knowledge of the Company, since the date of the Audited Company Balance Sheet
to the date hereof, the Company has not received any notice in writing from or on behalf of any Material Relationship indicating that
such Material Relationship (i) intends to terminate, not renew or otherwise materially and adversely modify any Material Contract with
such Material Relationship or (ii) has ceased, or will cease, to supply or make available all or substantially all of the products, equipment,
goods or services currently supplied to the Company Group by such Material Relationship.
3.14
Real Property.
(a)
Owned Real Property. Section 3.14(a) of the Company Disclosure Letter sets forth the address of each Owned Real Property.
Except as would not have a Company Material Adverse Effect, with respect to each Owned Real Property: (i) the Company or Subsidiary (as
the case may be) has good and marketable indefeasible fee simple title to all of its Owned Real Property and tangible assets, free and
clear of all liens, except for Permitted Liens; (ii) other than the right of Parent pursuant to this Agreement, there are no outstanding
options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein;
(iii) there is no pending, or to the Knowledge of the Company, threatened condemnation, eminent domain or similar proceedings affecting
any of the Owned Real Property; and (iv) neither the Company nor any of its Subsidiaries has leased or otherwise granted to any Person
the right to use or occupy such Owned Real Property or any portion thereof. For purposes hereof, “Owned Real Property”
means all land, together with all buildings, structures, improvements, and fixtures located thereon, and all easements and other rights
and interests appurtenant thereto, owned by the Company or any Subsidiary thereof.
(b)
Leased Real Property. Section 3.14(b) of the Company Disclosure Letter contains a true, correct and complete list,
as of the date hereof, of all of the existing leases, subleases, licenses or other agreements pursuant to which the Company Group uses
or occupies, or has the right to use or occupy, now or in the future, any real property (such property, the “Leased Real Property,”
and each such lease, sublease, license or other agreement, a “Lease,” and
together with the Owned Real Property, the “Real Property”). The Company has made available to Parent true, correct
and complete (in all material respects) copies of all Leases (including all material modifications, amendments and supplements thereto).
With respect to each Lease and except as would not be material to the business of the Company Group, taken as a whole, (i) to the
Knowledge of the Company, there are no disputes with respect to such Lease; (ii) the Company or one of its Subsidiaries has not collaterally
assigned or granted any other security interest in such Lease or any interest therein; and (iii) there are no liens (other than Permitted
Liens) on the estate or interest created by such Lease. The Company or one of its Subsidiaries has valid leasehold estates in the Leased
Real Property, free and clear of all liens (other than Permitted Liens). To the Knowledge of the Company, neither the Company Group, nor
to the Knowledge of the Company, any other party to the Lease is in material breach of or default pursuant to any
Lease. The
Real Property constitutes all of the material real property used in connection with the business of the Company.
(c)
Subleases. Section 3.14(c) of the Company Disclosure Letter contains a true, correct and complete list of all of the
existing material subleases, licenses or similar agreements (including all amendments, extensions, renewals, guaranties and other agreements
with respect thereto, each, a “Sublease”) granting to any Person, other than the Company Group, any right to use or
occupy, now or in the future, the Leased Real Property. With respect to each of the Subleases, (i) to the Knowledge of the Company,
there are no disputes with respect to such Sublease that would result in material liability to the Company Group, taken as a whole; and
(ii) the other party to such Sublease is not an Affiliate of the Company Group. Except as set forth in Section 3.14(c) of the
Company Disclosure Letter, neither the Company nor its Subsidiaries has subleased, licensed or otherwise granted any Person the right
to use or occupy any of the Leased Real Property.
3.15
Environmental Matters. Except as would not have a Company Material Adverse Effect, none of the members of the Company Group
(a) has received any written notice alleging that the Company or any Subsidiary has violated, or has any liability under, any applicable
Environmental Law; (b) has transported, produced, processed, manufactured, generated, used, treated, handled, stored, released or
disposed, or arranged for the disposal, of any Hazardous Substances in violation of or in a manner giving rise to liability under any
applicable Environmental Law; (c) has exposed any employee or other Person to Hazardous Substances in violation of or in a manner
giving rise to liability under any applicable Environmental Law; (d) is a party to or is the subject of any pending or, to the Knowledge
of the Company, threatened Legal Proceeding (i) alleging the noncompliance by the Company Group with any Environmental Law; or (ii) seeking
to impose any responsibility for any investigation, cleanup, removal or remediation pursuant to any Environmental Law; (e) has failed
or is failing to comply with any Environmental Law, which compliance includes possession and maintenance of all Permits required under
applicable Environmental Laws; or (f) owns or operates, or has owned or operated, any property or facility contaminated by any Hazardous
Substance, so as to result in liability to the Company or any Subsidiary under Environmental Law.
3.16
Intellectual Property.
(a)
Use of Intellectual Property. The Company Group does not own any material Intellectual Property. All material Intellectual
Property that is used in or necessary for the operation of the business of the Company Group is licensed to the Company Group under the
IP Contracts. The Company Group has a valid and enforceable license to use all material Intellectual Property that is used in or necessary
for the operation of the business of the Company Group, except as would not be material to the business of the Company Group, taken as
a whole.
(b)
IP Contracts. Section 3.16(b) of the Company Disclosure Letter sets forth a correct and complete list of all IP Contracts.
For purposes of this Agreement, “IP Contracts” means all Contracts to which the Company Group is a party (i) as to
which the breach, nonperformance, cancellation or failure to renew by any party thereto would reasonably be expected to have a Company
Material Adverse Effect; and (ii) pursuant to which a third Person has licensed or transferred any Intellectual Property to the
Company Group, which Intellectual Property is material to the operation of the business of the Company Group, taken as a whole, including,
without limitation, the Franchise Agreements, other than any (x) non-disclosure agreements entered into in the ordinary course of
business; (y) non-exclusive licenses of commercially available software and technology; and (z) non-exclusive licenses to software
and materials licensed as open-source, public-source or freeware.
(c)
No Notice of Infringement. Since January 4, 2021, the Company Group has not received written notice from any third Person,
or been involved in any Legal Proceeding, alleging that the
operation
of the business of the Company Group or of the Company’s or any of its Subsidiaries’ products infringes, misappropriates,
dilutes or otherwise violates the Intellectual Property of any third Person or constitutes unfair competition or unfair trade practices
pursuant to the laws of any jurisdiction, except as would not be material to the business of the Company Group, taken as a whole.
(d)
Business Systems. The Company Group owns, leases, licenses, or otherwise has the legal right to use all Business Systems,
and such Business Systems are reasonably sufficient for the needs of the Company Group’s business as it is currently conducted,
except as would not have a Company Material Adverse Effect. The Company Group has implemented and maintains commercially reasonable security,
disaster recovery, and business continuity plans, procedures, and facilities designed to provide substantially continuous monitoring and
alerting of material operational problems or issues with the Business Systems in the possession or operational control of the Company
Group, except where the failure to implement and maintain such plans, procedures, or facilities would not have a Company Material Adverse
Effect. To the Knowledge of the Company, in the last 12 months, with respect to any of the Business Systems, there has not, as of the
date hereof, been any (A) unauthorized access or use; or (B) failure that has not been remedied or replaced, except, in the case of the
foregoing (A) or (B), as would not be material to the business of the Company Group, taken as a whole.
(e)
Data Security and Privacy. The Company and each of its Subsidiaries (i) is, and since January 4, 2021 has been, in material
compliance with all Data Security Requirements, except for noncompliance that would have a Company Material Adverse Effect; and (ii) since
January 4, 2021, has taken commercially reasonable steps consistent with standard industry practice by companies of similar size and maturity,
and in compliance in all material respects with the Data Security Requirements to protect (A) the confidentiality, integrity, availability,
and security of its Business Systems that are involved in the Processing of Personally Identifiable Information, in the conduct of the
business of the Company and its Subsidiaries as currently conducted; and (B) Personally Identifiable Information Processed by the Company
or such Subsidiary or on their behalf from unauthorized use, access, disclosure, theft, and modification, except in each case as would
not be material to the business of the Company Group, taken as a whole. As of the date hereof, except as would not have a Company Material
Adverse Effect, (i) there are no pending complaints, investigations, inquiries, notices, enforcement proceedings, or actions by or before
any Governmental Authority and (ii) since January 4, 2021, no fines or other penalties have been imposed on or written claims for compensation
have been received by the Company or any Subsidiary, relating to any Specified Data Breach. The Company and each of its Subsidiaries have
not since January 4, 2021, (1) experienced any Specified Data Breaches; or (2) been involved in any Legal Proceedings related to or alleging
any violation of any Data Security Requirements by the Company Group or any Specified Data Breaches, each except as would not be material
to the business of the Company Group, taken as a whole.
3.17
Tax Matters.
(a)
Tax Returns. Except as would not have a Company Material Adverse Effect, each member of the Company Group has (i) timely
filed (taking into account valid extensions) all United States federal, state, local and non-United States returns, estimates, information
statements and reports (including amendments thereto) relating to any and all Taxes (“Tax Returns”) required to be
filed by any of them with the appropriate Governmental Authority (taking into account any valid extensions with respect thereto) and all
such Tax Returns are true, complete and correct; and (ii) paid, or has adequately reserved on the face of the Audited Company Balance
Sheet (in accordance with GAAP) for the payment of, all Taxes that are due and payable;
(b)
Except as would not have a Company Material Adverse Effect, none of the members of the Company Group has executed any waiver, except
in connection with any ongoing Tax examination, of
any statute
of limitations on, or extended the period for the assessment or collection of, any material Tax, in each case that has not since expired;
(c)
Taxes Paid. Except as would not have a Company Material Adverse Effect, each member of the Company Group has timely paid
or withheld with respect to their employees and other third Persons (and paid over any amounts withheld to the appropriate Tax authority)
all United States federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes
required to be paid or withheld;
(d)
No Audits. (i) No audits or other examinations with respect to material Taxes of the Company Group are presently in progress
or have been asserted or proposed in writing and (ii) none of the members of the Company Group has received a written claim by a Governmental
Authority in a jurisdiction where the Company Group does not file Tax Returns that the Company or such Subsidiary, as the case may be,
is or may be subject to material tax in that jurisdiction;
(e)
No Material Liens. There are no material pledges, liens, charges, mortgages, encumbrances or security interests of any kind
or nature whatsoever for Taxes on the property or assets of any member of the Company Group, except for Permitted Liens;
(f)
Spin-offs. In the past three years, none of the members of the Company Group has constituted either a “distributing
corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment pursuant
to Section 355 of the Code;
(g)
No Listed Transaction. None of the members of the Company Group has engaged in a “listed transaction” as set
forth in Treasury Regulations Section 1.6011-4(b)(2);
(h)
Tax Agreements. None of the members of the Company Group (i) is a party to or bound by, or currently has any material
liability pursuant to, any Tax sharing, allocation or indemnification agreement or obligation, other than any such agreement or obligation
solely between and among members of the Company Group, or entered into in the ordinary course of business the primary purpose of which
is unrelated to Taxes; or (ii) has any material liability for the Taxes of any Person other than the Company Group pursuant to Treasury
Regulations Section 1.1502-6 (or any similar provision of state, local or non-United States law) as a transferee or successor, or
otherwise;
(i)
No Rulings or Agreements. No private letter rulings, technical advance memoranda, closing agreement or similar agreements
or rulings have been entered into or issued by any Governmental Authority with respect to a material amount of Taxes of any member of
the Company Group that are binding on any such member in respect of any taxable year for which the statute of limitations has not yet
expired; and
(j)
Foreign Taxation. Neither the Company nor any of its Subsidiaries has, in the past three years, engaged in a trade or business,
had a permanent establishment (within the meaning of an applicable Tax treaty or convention between the United States and such foreign
country), or otherwise been subject to taxation in any country other than the country of its formation.
3.18
Employee Plans.
(a)
Employee Plans. Section 3.18(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of
the date hereof, of all material Employee Plans. For purposes of this Agreement, “Employee Plan” shall mean (collectively)
(i) all “employee benefit plans” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA; and (ii) all
other material employment, natural person consultant or
other service,
bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement, disability,
insurance, vacation, deferred compensation, severance, termination, retention, change in control compensation and other similar material
fringe, welfare or other employee benefit plans, programs, agreement, contracts, policies or binding arrangements (whether or not in
writing) (x) sponsored, maintained or contributed to (or required to be contributed to) by any member of the Company Group; or (y) otherwise
with respect to which the Company Group has any liability, contingent or otherwise. Except where otherwise indicated on Section 3.18(a)
of the Company Disclosure Letter, with respect to each material Employee Plan, the Company has made available to Parent true, correct
and complete copies of the plan document or summary plan description (or, in the case of any unwritten plan, a written description thereof).
(b)
Absence of Certain Plans. Neither the Company nor any other trade or business (whether or not incorporated) that would be
treated as a single employer with the Company Group pursuant to Section 414 of the Code (an “ERISA Affiliate”) has,
in the last six years, maintained, sponsored or contributed to or currently maintains, sponsors or participates in, or contributes to,
or has any liability or obligation with respect to, (i) a “multiemployer plan” (as defined in Section 3(37) of ERISA);
(ii) a “multiple employer plan” (as defined in Section 4063 or Section 4064 of ERISA); (iii) a “defined
benefit plan” (as defined in Section 3(35) of ERISA) or a plan that otherwise is or was subject to Section 302 of Title I
of ERISA, Section 412 of the Code or Title IV of ERISA; or (iv) a “multiple employer welfare arrangement” (within
the meaning of Section 210 of ERISA or Section 413(c) of the Code). Except as would not result in material liability to the Company Group,
no member of the Company Group has any current or contingent liability by reason of at any time being treated as a single employer with
any other Person under Section 414 of the Code.
(c)
Compliance. Except as would not be material to the business of the Company Group, taken as a whole: (i) each Employee Plan
has been established, maintained, funded, operated and administered in accordance with its terms and with all applicable law, including
the applicable provisions of ERISA, the Code and any applicable regulatory guidance issued by any Governmental Authority; (ii) all required
contributions, premiums and other payments relating to the Employee Plans have been timely and accurately made, and no Employee Plan has
any unfunded liabilities that have not been fully accrued; (iii) each Employee Plan that is intended to be qualified under Section 401(a)
of the Code has received a favorable determination or opinion letter from the IRS as to its qualified status, and, to the Knowledge of
the Company, nothing has occurred that could reasonably be expected to adversely affect such Employee Plan’s qualified status; and
(iv) no member of the Company Group has incurred, whether or not assessed, any Tax or penalty under Sections 4980B, 4980D, 4980H, 6721
or 6722 of the Code.
(d)
Employee Plan Legal Proceedings. As of the date hereof, there are no material Legal Proceedings pending or, to the Knowledge
of the Company, threatened on behalf of or against any Employee Plan, the assets of any trust pursuant to any Employee Plan, or the plan
sponsor, plan administrator or any fiduciary of any Employee Plan with respect to the administration or operation of such plans, other
than routine claims for benefits that have been or are being handled through an administrative claims procedure.
(e)
No Prohibited Transactions. Except as would not have a Company Material Adverse Effect, none of the Company, any of its
Subsidiaries, or, to the Knowledge of the Company, any of their respective directors, officers, employees or agents has, with respect
to any Employee Plan, engaged in or been a party to any breach of fiduciary duty or non-exempt “prohibited transaction” (as
defined in Section 4975 of the Code or Section 406 of ERISA) that could reasonably be expected to result in the imposition of
any penalty assessed pursuant to Section 502(i) of ERISA or a Tax imposed by Section 4975 of the Code, in each case applicable
to the Company Group or any Employee Plan, or for which the Company Group has any indemnification obligation.
(f)
No Welfare Benefit Plan. No Employee Plan provides post-termination or retiree life insurance, health or other welfare
benefits to any person, except as may be required by Section 4980B of the Code or any similar law for which the covered Person pays
the full cost of coverage. Within thirty (30) Business Days following the date of this Agreement, the Company shall provide or otherwise
make available to Parent, a copy of each Form 1095-B and Form 1095-C, as applicable, for the last three (3) years. Except as would not
be material to the business of the Company Group, taken as a whole, since January 4, 2021, the Company has timely filed each Form 1095-B
and Form 1095-C, as applicable.
(g)
No Additional Rights. Except as expressly provided for by the terms of this Agreement, none of the execution and delivery
of this Agreement or the consummation of the Merger will, either alone or in conjunction with any other event (whether contingent or otherwise),
(i) result in, or accelerate the time of payment, funding or vesting of, any payment (including severance, change in control, stay or
retention bonus or otherwise) or benefits becoming due under any Employee Plan or otherwise; (ii) increase any compensation or benefits
otherwise payable under any Employee Plan or otherwise; (iii) result in the acceleration of the time of payment or vesting of any compensation
or benefits under any Employee Plan or otherwise; (iv) trigger any other obligation under, or result in the breach or violation of, any
Employee Plan; or (v) limit or restrict the right of Parent to merge, amend or terminate any material Employee Plan on or after the Effective
Time (other than ordinary notice and administration requirements and expenses or routine claims for benefits).
(h)
Section 280G. No payment or benefit payable to any “disqualified individual” (as such term is defined in Treasury
Regulations Section 1.280G-1) in connection with the consummation of the Merger (either alone or in connection with any other event) would
reasonably be expected to be characterized as an “excess parachute payment” within the meaning of Section 280G of the Code,
and the Company Group has no obligation to gross-up or indemnify any individual with respect to any Tax under Section 4999 of the Code.
(i)
Section 409A. Except as would not have a Company Material Adverse Effect, each Employee Plan has been maintained, in form
and operation, in all respects in compliance with Section 409A of the Code. The Company Group has no obligation to gross-up or indemnify
any individual with respect to any such Tax.
3.19
Labor Matters.
(a)
Union Activities. The Company Group is not a party to or bound by any collective bargaining agreement, labor union contract
or trade union agreement or other Contract with any labor union, works council or other labor organization (each, a “Collective
Bargaining Agreement”), and no employees of the Company Group are represented by a labor union, works council or other labor
organization with respect to their employment with the Company Group. To the Knowledge of the Company, there are no pending or threatened
activities or proceedings of any labor union, works council, or other labor organization or trade union or group of employees to organize
any employees of the Company Group with regard to their employment with the Company Group, and no such activities or proceedings have
occurred within the past three years. No Collective Bargaining Agreement is being negotiated by the Company Group. There is no material
strike, lockout, organized slowdown, organized work stoppage, or other material labor dispute involving a union against the Company Group
pending, or to the Knowledge of the Company, threatened against the Company Group, and no such labor disputes have occurred within the
past three years.
(b)
Wage and Hour and Legal Compliance. Except as would not be material to the business of the Company Group, taken as a whole,
the Company Group is in compliance, and has complied, with applicable laws and orders with respect to labor and employment (including,
but not limited to, applicable laws, statutes, acts, codes, orders, rules and regulations regarding wage and hour, worker classification,
immigration, harassment, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs
(including
the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, affirmative action,
unemployment insurance, discrimination or retaliation in employment, employee health and safety, and collective bargaining).
(c)
Sexual Harassment. Since January 1, 2021, there have been no collective Legal Proceedings pending or (to the Knowledge of
the Company) threatened related to any allegations of sexual or racial harassment, discrimination, or retaliation by any employee of the
Company Group. Since January 1, 2021, there have been no investigations by or reports made to the Company’s audit committee related
to any allegations of sexual or racial harassment, discrimination, or retaliation by any employee of the Company Group. To the Knowledge
of the Company, there are no allegations of, and no investigations by third parties pending or threatened relating to allegations of,
sexual or racial harassment, discrimination, or retaliation by any corporate-level employee of the Company. To the Knowledge of the Company,
there are no allegations of, and no investigations by third parties pending or threatened relating to allegations of, sexual or racial
harassment, discrimination, retaliation or other types of misconduct by any employee of the Company Group that is a non-corporate level
employee of the Company that would be material to the business of the Company Group, taken as a whole.
(d)
WARN Act. Within the past three (3) years, the Company Group has not implemented any plant closing or layoff of employees
that implicated the WARN Act or any similar Law.
3.20
Permits. Except as would not have a Company Material Adverse Effect, the Company Group holds, to the extent legally required,
all permits, licenses, variances, clearances, consents, commissions, franchises, exemptions, orders and approvals from Governmental Authorities
that are required for the operation of the business of the Company Group as currently conducted (“Permits”). The Company
Group complies with the terms of all Permits, and no suspension or cancellation of any of the Permits is pending or, to the Knowledge
of the Company, threatened, except for such noncompliance, suspensions or cancellations that would not have a Company Material Adverse
Effect.
3.21
Compliance with Laws. The Company and each of its Subsidiaries is in compliance with all laws and orders that are applicable
to the Company Group or to the conduct of the business or operations of the Company Group, except for noncompliance that would not have
a Company Material Adverse Effect. No representation or warranty is made in this Section 3.21 with respect to (a) compliance with
the Exchange Act, which is exclusively addressed by Section 3.9 and Section 3.10; (b) compliance with Environmental Law,
which is exclusively addressed by Section 3.15; (c) compliance with applicable Tax laws, which is exclusively addressed by Section 3.17
and Section 3.18; (d) compliance with ERISA and other applicable laws relating to employee benefits, which is exclusively addressed
by Section 3.18; or (e) compliance with labor law matters, which is exclusively addressed by Section 3.19.
3.22
Legal Proceedings; Orders.
(a)
No Legal Proceedings. There are no Legal Proceedings pending or, to the Knowledge of the Company, threatened against the
Company Group or, as of the date hereof, against any present or former officer or director of the Company Group in such individual’s
capacity as such that are material to the business of the Company Group, taken as a whole.
(b)
No Orders. As of the date hereof, none of the Company Group is subject to any material order of any kind or nature that
would prevent or materially delay the consummation of the Merger or the ability of the Company to perform in all material respects its
covenants and obligations pursuant to this Agreement.
3.23
Insurance. As of the date hereof, the Company Group has all material policies of insurance covering the Company Group and
any of its employees, properties or assets, including policies of property, fire, workers’ compensation, products liability, directors’
and officers’ liability and other casualty and liability insurance, that is customarily carried by Persons conducting business similar
to that of the Company Group. As of the date hereof, all such insurance policies are in full force and effect, no notice of cancellation
has been received and there is no existing default or event that, with notice or lapse of time or both, would constitute a default by
any insured thereunder, except for such defaults that would not have a Company Material Adverse Effect.
3.24
Related Person Transactions. Except for indemnification, compensation or other employment arrangements in the ordinary course
of business, there are no Contracts, transactions, arrangements or understandings between the Company Group, on the one hand, and any
Affiliate (including any director or officer) thereof, but not including any wholly-owned Subsidiary of the Company, on the other hand,
that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in the Company’s Form 10-K
or proxy statement pertaining to an annual meeting of stockholders.
3.25
Brokers. Except for the Advisor, there is no financial advisor, investment banker, broker, finder, agent or other Person
that has been retained by or is authorized to act on behalf of the Company Group, the Company Board or any committee thereof, including
the Special Committee, who is entitled to any financial advisor’s, investment banking, brokerage, finder’s or other non-hours
based fee or commission in connection with the Merger. The Company has made available to Parent complete and correct copies of all agreements
under which such fee, commission, or other like payment is payable and all indemnification and other agreements under which any such fee
or commission is payable.
3.26
Foreign Matters. None of the Company or any of its Subsidiaries has, or had in the past five years, any operations, assets,
properties, employees, businesses or activities outside of the United States.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES
Except as set forth in
the disclosure letter delivered by the Buyer Parties on the date hereof (the “Parent Disclosure Letter”), the Buyer
Parties hereby, jointly and severally, represent and warrant to the Company as follows:
4.1
Organization; Good Standing.
(a)
Parent. Parent (i) is duly organized, validly existing and in good standing pursuant to the laws of its jurisdiction
of organization; and (ii) has the requisite power and authority to conduct its business as it is presently being conducted and to
own, lease or operate its properties and assets.
(b)
Merger Sub. Merger Sub (i) is a corporation duly incorporated, validly existing and in good standing pursuant to the
DGCL; and (ii) has the requisite corporate power and authority to conduct its business as it is presently being conducted and to
own, lease or operate its properties and assets.
(c)
Organizational Documents. Parent has made available to the Company true, correct and complete copies of the certificate
of incorporation, bylaws and other similar organizational documents of the Buyer Parties, each as amended to date. No Buyer Party is in
violation of its certificate of incorporation, bylaws or other similar organizational document.
4.2
Power; Enforceability. Each Buyer Party has the requisite power and authority to (a) execute and deliver this Agreement;
(b) perform its covenants and obligations hereunder; and (c) consummate the Merger. The execution and delivery of this Agreement
by the Buyer Parties, the performance by each Buyer Party of its respective covenants and obligations hereunder and the consummation of
the Merger have been duly authorized, adopted and approved by all necessary action on the part of each Buyer Party and no additional actions
on the part of any Buyer Party are necessary to authorize (i) the execution and delivery of this Agreement by each Buyer Party; (ii) the
performance by each Buyer Party of its respective covenants and obligations hereunder; or (iii) subject to the adoption of this Agreement
by the sole stockholder of Merger Sub, the consummation of the Merger. This Agreement has been duly executed and delivered by each Buyer
Party and, assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of
each Buyer Party, enforceable against each Buyer Party in accordance with its terms, subject to the Enforceability Limitations.
4.3
Non-Contravention. The execution and delivery of this Agreement by each Buyer Party, the performance by each Buyer Party
of its covenants and obligations hereunder, and the consummation of the Merger do not (a) violate or conflict with any provision
of the certificate of incorporation, bylaws or other similar organizational documents of the Buyer Parties; (b) violate, conflict
with, result in the breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) pursuant
to, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration pursuant
to any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument
or obligation to which any Buyer Party is a party or by which the Buyer Parties or any of their properties or assets may be bound; (c) assuming
the consents, approvals and authorizations referred to in Section 4.4 have been obtained and, in the case of the consummation of
the Merger, subject to obtaining the Requisite Stockholder Approval and the adoption of this Agreement by the sole stockholder of Merger
Sub, violate or conflict with any law or order applicable to the Buyer Parties or by which any of their properties or assets are bound;
or (d) result in the creation of any lien (other than Permitted Liens) upon any of the properties or assets of the Buyer Parties,
except in the case of each of clauses (b), (c) and (d) for such violations, conflicts, breaches, defaults, terminations, accelerations
or liens that would not, individually or in the aggregate, prevent or materially delay the consummation of the Merger or the ability of
the Buyer Parties to fully perform their respective covenants and obligations pursuant to this Agreement.
4.4
Requisite Governmental Approvals. No Consent of any Governmental Authority is required on the part of the Buyer Parties
or any of their Affiliates (a) in connection with the execution and delivery of this Agreement by each Buyer Party; (b) the
performance by each Buyer Party of its covenants and obligations pursuant to this Agreement; or (c) the consummation of the Merger,
except (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and such filings with Governmental
Authorities to satisfy the applicable laws of states in which the Company Group is qualified to do business; (ii) such filings and
approvals as may be required by any federal or state securities laws, including compliance with any applicable requirements of the Exchange
Act; (iii) such filings as may be required under the rules and regulations of NYSE or TSX; (iv) compliance with any applicable requirements
of the HSR Act; and (v) such other Consents the failure of which to obtain would not, individually or in the aggregate, prevent or
materially delay the consummation of the Merger or the ability of the Buyer Parties to fully perform their respective covenants and obligations
pursuant to this Agreement.
4.5
Legal Proceedings; Orders.
(a)
No Legal Proceedings. As of the date hereof, there are no Legal Proceedings pending or, to the knowledge of Parent or any
of its Affiliates, threatened against the Buyer Parties that would, individually or in the aggregate, prevent or materially delay the
consummation of the Merger or the ability of the Buyer Parties to fully perform their respective covenants and obligations pursuant to
this Agreement.
(b)
No Orders. No Buyer Party is subject to any order of any kind or nature that would prevent or materially delay the consummation
of the Merger or the ability of the Buyer Parties to fully perform their respective covenants and obligations pursuant to this Agreement.
4.6
Ownership of Company Capital Stock. Other than the Series D Convertible Preferred Stock beneficially owned by Parent or
its Affiliates, none of the Buyer Parties or any of their respective directors, executive officers, general partners or, to the knowledge
of Parent, any of its controlled Affiliates or any employees of the Buyer Parties or any of their controlled Affiliates owns any shares
of Company Capital Stock (or any rights to acquire, directly or indirectly, such shares).
4.7
Brokers. There is no financial advisor, investment banker, broker, finder, agent or other Person that has been retained
by or is authorized to act on behalf of the Buyer Parties or any of their Affiliates who is entitled to any financial advisor’s,
investment banking, brokerage, finder’s or other fee or commission payable by the Company in connection with the Merger.
4.8
Operations of Merger Sub. Merger Sub has been formed solely for the purpose of engaging in the Merger, and, prior to the
Effective Time, Merger Sub will not have engaged in any other business activities and will have incurred no liabilities or obligations
other than as contemplated by this Agreement. Burger King Company LLC owns beneficially and of record all of the outstanding capital stock,
and other equity and voting interest in, Merger Sub free and clear of all liens.
4.9
No Parent Vote or Approval Required. No vote or consent of the holders of any capital stock of, or other equity or voting
interest in, Parent is necessary to approve this Agreement and the Merger. The vote or consent of the sole stockholder of Merger Sub is
the only vote or consent of the capital stock of, or other equity interest in, Merger Sub necessary to approve this Agreement and the
Merger.
4.10
Stockholder and Management Arrangements. As of the date hereof, except for the Voting Agreement and any arrangement between
Parent or its Affiliates, on the one hand, and the Company Group, on the other hand, in the ordinary course of their ongoing business
arrangements, none of Parent or any of its Affiliates is a party to any Contract, or has authorized, made or entered into, or committed
or agreed to enter into, any formal or informal arrangements or other understandings (whether or not binding) with any stockholder, director,
officer, employee or other Affiliate of the Company Group (other than Parent and its Affiliates) (a) relating to (i) this Agreement
or the Merger; or (ii) the Surviving Corporation or any of its Subsidiaries, businesses or operations (including as to continuing
employment) from and after the Closing; or (b) pursuant to which any (i) such holder of Company Capital Stock would be entitled
to receive consideration of a different amount or nature than the Per Share Price in respect of such holder’s shares of Company
Capital Stock; (ii) such holder of Company Capital Stock has agreed to approve this Agreement or vote against any Superior Proposal;
or (iii) such stockholder, director, officer, employee or other Affiliate of the Company Group has agreed to provide, directly or
indirectly, equity investment to the Buyer Parties or the Company to finance any portion of the Merger.
4.11
Sufficient Funds(a). Parent will at the Effective Time have access to the funds necessary
for the payment of all amounts payable pursuant to Article II in connection with or as a result of the Merger.
4.12
Exclusivity of Representations and Warranties.
(a)
No Other Representations and Warranties. Each Buyer Party, on behalf of itself and its Subsidiaries, acknowledges and agrees
that, except for the representations and warranties expressly set forth in Article III:
(i)
neither the Company nor any of its Subsidiaries (or any other Person) makes, or has made, any representation or warranty relating
to the Company, its Subsidiaries or any of their businesses, operations or otherwise in connection with this Agreement or the Merger;
(ii)
no Person has been authorized by the Company Group or any of its Affiliates or Representatives to make any representation or warranty
relating to the Company Group or any of its businesses or operations or otherwise in connection with this Agreement or the Merger, and
if made, such representation or warranty must not be relied upon by the Buyer Parties or any of their respective Affiliates or Representatives
as having been authorized by the Company Group or any of its Affiliates or Representatives (or any other Person); and
(iii)
the representations and warranties made by the Company in this Agreement are in lieu of and are exclusive of all other representations
and warranties, including any express or implied or as to merchantability or fitness for a particular purpose, and the Company hereby
disclaims any other or implied representations or warranties, notwithstanding the delivery or disclosure to the Buyer Parties or any of
their respective Affiliates or Representatives of any documentation or other information (including any financial information, supplemental
data or financial projections or other forward-looking statements).
(b)
No Reliance. Each of Parent and Merger Sub has conducted its own independent review and analysis of the business, operations,
assets, liabilities, results of operations, financial condition and prospects of the Company and its Subsidiaries and acknowledges that
each of Parent and Merger Sub has been provided access for such purposes. Each Buyer Party, on behalf of itself and its Subsidiaries,
acknowledges and agrees that, except for the representations and warranties expressly set forth in Article III, it is not acting
(including, as applicable, by entering into this Agreement or consummating the Merger) in reliance on:
(i)
any representation or warranty, express or implied;
(ii)
any estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information provided
or addressed to the Buyer Parties or any of their respective Affiliates or Representatives, including any materials or information made
available in the electronic data room hosted by or on behalf of the Company in connection with the Merger, in connection with presentations
by the Company’s management or in any other forum or setting; or
(iii)
the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information,
memorandum, presentation or other materials or information.
Article V
INTERIM OPERATIONS OF THE COMPANY
5.1
Affirmative Obligations. Except (a) as expressly contemplated by this Agreement or required by applicable law or the
express terms of the Franchise Agreements (excluding any incurrence of capital expenditures, other than capital expenditures for necessary
maintenance costs with respect to any restaurants operated by the Company Group in an aggregate amount not to exceed $17,000 per restaurant
on an annual basis); (b) as set forth in Section 5.1 or Section 5.2 of the Company Disclosure Letter; or (c) as requested or approved
by Parent in writing (with email being sufficient) (which approval will not be unreasonably withheld, conditioned or delayed), at all
times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the
termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will, and will cause each of its Subsidiaries
to, use reasonable best efforts to (i) maintain its existence in good standing (to the extent applicable) pursuant to applicable
law; (ii) subject to the restrictions and exceptions set forth in Section 5.2 or elsewhere in this Agreement, conduct its business
and operations
in the ordinary course of business; and (iii) use its respective commercially reasonable efforts to (A) preserve intact its material
assets, properties, Contracts or other legally binding understandings, licenses and business organizations; (B) keep available the
services of its current officers and key employees; and (C) preserve the current relationships with customers, vendors, distributors,
partners (including system integrators, platform partners, referral partners, consulting and implementation partners), lessors, licensors,
licensees, creditors, contractors and other Persons with which the Company Group has material business relations (other than Parent and
its Affiliates).
5.2
Forbearance Covenants. Except (i) as set forth in Section 5.2 of the Company Disclosure Letter; (ii) as approved
by Parent in writing (with email being sufficient) (which approval will not be unreasonably withheld, conditioned or delayed); or (iii)
as expressly contemplated by the terms of this Agreement or required by applicable law or the express terms of the Franchise Agreements
(excluding any incurrence of capital expenditures, other than capital expenditures for necessary maintenance costs with respect to any
restaurants operated by the Company Group in an aggregate amount not to exceed $17,000 per restaurant on an annual basis), at all times
during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination
of this Agreement pursuant to Article VIII and the Effective Time, the Company will not, and will not permit any of its Subsidiaries,
to:
(a)
amend the Charter, the Bylaws, or any other similar organizational document;
(b)
propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization;
(c)
issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any Company Securities, except (A) for the issuance or sale of shares of
Company Common Stock in connection with the exercise or settlement (as applicable) of the Company Equity Awards outstanding on or prior
to the date hereof, in accordance with their terms as in effect on the date hereof; or (B) in connection with agreements in effect on
the date hereof and made available to Parent (or the form of such agreement has been made available to Parent and any such agreement is
substantially identical to such form), including the maximum amount of Company Securities to be issued thereunder;
(d)
directly or indirectly acquire, repurchase or redeem any securities, except for (A) repurchases, withholdings, or cancellations
of Company Securities in connection with the exercise or settlement or other disposition or issuance of Company Equity Awards outstanding
on or prior to the date hereof in accordance with their terms as in effect on the date hereof; or (B) transactions between the Company
and any of its direct or indirect Subsidiaries;
(e)
(A) adjust, split, combine or reclassify any shares of capital stock, or issue or authorize or propose the issuance of any
other Company Securities in respect of, in lieu of or in substitution for, any shares of its capital stock or other equity or voting interest;
(B) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof)
in respect of any shares of capital stock or other equity or voting interest, or make any other actual, constructive or deemed distribution
in respect of any shares of capital stock or other equity or voting interest, except for (i) cash dividends made by any direct or indirect
wholly-owned Subsidiary of the Company to the Company, or one of the Company’s other wholly-owned Subsidiaries or (ii) cash dividends
that are consistent with past practice, at a rate not to exceed the amount set forth in Section 5.2(e)(ii) of the Company Disclosure Letter
and with record and payment dates consistent with past practice of the Company during the prior 12 months; (C) pledge or encumber
any shares of its capital stock or other equity or voting interest; or (D) modify the terms of any shares of its capital stock or
other equity or voting interest;
(f)
(A) incur or assume any Indebtedness (including any long-term or short-term debt) or issue any debt securities, except (1) for
trade payables incurred in the ordinary course of business; (2) obligations incurred pursuant to business credit cards in the ordinary
course of business; (3) intercompany loans or advances between or among the Company and its direct or indirect wholly-owned Subsidiaries;
and (4) borrowings under the Credit Agreement in the ordinary course of business in an outstanding principal amount not in excess of $10,000,000
in the aggregate; or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other Person, except with respect to obligations of any direct or indirect wholly-owned Subsidiaries
of the Company;
(g)
mortgage or pledge any of its and its Subsidiaries’ assets, tangible or intangible, or create or incur any lien thereupon
(other than Permitted Liens), other than in connection with financing transactions permitted by Section 5.2(f) or consented to by Parent;
(h)
make any loans, advances or capital contributions to, or investments in, any other Person, except for (1) advances to directors,
officers and other employees for travel and other business-related expenses, in each case, in the ordinary course of business and in compliance
in all material respects with the Company Group’s policies related thereto; and (2) loans, advances or capital contributions to,
or other extensions of credit or investments in, the Company or any direct or indirect wholly-owned Subsidiaries of the Company;
(i)
acquire, lease, license, sell, sell and leaseback, abandon, transfer, assign, guarantee, or exchange any assets, tangible or intangible,
in each case in excess of $150,000 individually, and other than (1) the sale of products or services of the Company Group in the ordinary
course of business; (2) the acquisition, lease or license of products or services by the Company Group in the ordinary course of business;
and (3) any capital expenditures permitted by (or consented to by Parent under) Section 5.2(p);
(j)
encumber or dispose of any Owned Real Property or acquire a fee interest in any real property;
(k)
close any restaurants operated by the Company Group as of the date hereof, other than the restaurants set forth in Section 5.2(k)
of the Company Disclosure Letter;
(l)
(A) enter into, adopt, or amend (including accelerating the vesting, payment or funding), modify or terminate any bonus, profit
sharing, compensation, severance, termination, option, appreciation right, performance unit, phantom equity, stock equivalent, share purchase
agreement, pension, retirement, deferred compensation, employment, severance or other Employee Plan in any manner (other than in connection
with at-will offer letters entered into in the ordinary course of business with new hires permitted pursuant to clause (D) of this paragraph,
provided that the terms thereof shall not include the granting of any equity or equity-based awards); (B) increase or decrease the compensation
of any director, officer, employee, individual consultant, former employee, individual independent contractor, or other individual service
provider of the Company Group with an annual base salary of $150,000 or more, provided that any compensation increase to an individual
with an annual base salary below $150,000 shall be made in connection with the Company’s annual performance review and shall not
exceed fifteen percent (15%) for any individual or four percent (4%) in the aggregate, in each case, with respect to the annual base salary
levels in effect for calendar year 2023; (C) enter into any change in control, severance or similar agreement or any retention or similar
agreement with any officer, employee, director, individual independent contractor, individual consultant, or other individual service
provider of the Company Group, or (D) hire, terminate (other than for “cause”), furlough or temporarily lay off any officer,
employee, director, individual independent contractor, individual consultant, or other individual service provider of the Company Group
with an annual base salary or wages (or, in the case of non-employee service providers, equivalent compensation) of $150,000 or more;
(m)
settle, release, waive or compromise any pending or threatened material Legal Proceeding or other claim, except for the settlement
of any Legal Proceeding or other claim that is (A) reflected or reserved against in the consolidated financial statements of the
Company Group with a reserve of at least $100,000 as of the end of the most recently completed fiscal quarter of the Company Group included
in the Company SEC Reports filed prior to the date hereof and; (B) for solely monetary payments of, net of insurance recovery, no more
than $100,000 individually and $500,000 in the aggregate; or (C) settled in compliance with Section 6.15;
(n)
except as required by applicable law or GAAP, (A) revalue in any material respect any of its properties or assets, including
writing-off notes or accounts receivable, other than in the ordinary course of business; or (B) make any change in any of its accounting
principles or practices;
(o)
(A) make (other than in the ordinary course of business) or change any material Tax election; (B) settle, consent to or compromise
any material Tax claim or assessment or surrender a right to a material Tax refund; (C) consent to any extension or waiver of any
limitation period with respect to any material Tax claim or assessment (other than pursuant to extensions of time to file any Tax Return);
(D) file an amended Tax Return that could materially increase the Taxes payable by any member of the Company Group; or (E) request
any rulings from, or enter into a closing agreement with, any Governmental Authority regarding any material Tax;
(p)
incur or commit to incur any capital expenditure(s);
(q)
(A) modify, amend or terminate any Material Contract, (B) enter into any Contract that would have been a Material Contract if such
Contract was in existence as of the date hereof, (C) enter into, modify, amend or extend any contract with any key technology vendor,
(D) enter into, modify, amend or extend any Lease or any other Contract providing for the purchase of real property, (E) enter into any
Contract containing any covenant or other provision (i) limiting the right of the Company Group to engage in any material line of
business or to compete with any Person in any line of business that is material to the Company Group; (ii) prohibiting the Company
Group from engaging in any business with any Person or levying a fine, charge or other payment for doing so; or (iii) containing
and limiting the right of the Company Group pursuant to any “most favored nation” or “exclusivity” provisions,
in each case other than any such Contracts that (1) may be cancelled without material liability to the Company or its Subsidiaries
upon notice of 90 days or less, or (2) are not material to the Company Group, taken as a whole, or (F) enter into any sale leaseback
Contract or arrangement relating to any real property;
(r)
maintain insurance at less than current levels or otherwise in a manner inconsistent with past practice;
(s)
engage in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Company or
other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item
404;
(t)
effectuate or announce any closing, employee layoff, furlough, reduction to terms and conditions of employment or other event affecting
in whole or in part any site of employment, facility, operating unit or employee that would result in liability of the Company Group under
the WARN Act;
(u)
acquire (by merger, consolidation or acquisition of stock or assets) any other Person or any material portion thereof or material
equity interest therein or enter into any joint venture, limited liability company or legal partnership or similar arrangement (excluding,
for avoidance of doubt, reseller agreements and other commercial agreements that do not involve the formation of an entity with any third
Person);
(v)
(A) enter into any Collective Bargaining Agreement or agreement or arrangement to form a works council or other Contract with
any labor union or other labor organization or works council, except to the extent required by applicable law; provided that the
Company or its applicable Subsidiaries must first, to the extent not prohibited by law, provide Parent and its counsel reasonable advance
notice thereof and a reasonable opportunity to review and comment thereon, and the Company or such Subsidiaries will give due consideration
to all reasonable additions, deletions, changes or other recommendations suggested thereto by Parent or its counsel; or (B) recognize
or certify any labor union, works council or other labor organization, or group of employees, as the bargaining representative for any
employees of the Company Group, except as required by applicable law;
(w)
waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant
obligation of any current or former employee or independent contractor;
(x)
adopt or implement any stockholder rights plan or similar arrangement, in each case, applicable to the Merger or any other transaction
consummated pursuant to Parent’s rights under Section 5.3(d)(i)(2) or Section 5.3(d)(ii)(3); or
(y)
enter into, authorize any of, or agree or commit to enter into a Contract to take any of the actions prohibited by this Section 5.2.
5.3
Go Shop; No Solicitation.
(a)
Go Shop; No Solicitation or Negotiation. Notwithstanding anything to the contrary set forth in this Agreement but subject
to Section 5.3(d), during the period (the “Go-Shop Period”) beginning on the date of this Agreement and continuing
until 11:59 p.m., Eastern time, on the date that is 30 days following the date hereof (the “No-Shop Period Start Date”),
the Company and its Affiliates and their respective Representatives shall have the right to: (i) solicit, initiate, propose or induce
the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or
is reasonably expected to lead to, an Acquisition Proposal; (ii) subject to the entry into, and in accordance with, an Acceptable Confidentiality
Agreement, furnish to any Person (and its Representatives and financing sources subject to the terms and obligations of such Acceptable
Confidentiality Agreement applicable to such Person) any non-public information relating to the Company Group or afford to any such Person
(and such Representatives and financing sources) access to the business, properties, assets, books, records or other non-public information,
or to any personnel, of the Company Group, in any such case with the intent to induce the making, submission or announcement of, or to
knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition
Proposal, provided, however, that the Company will promptly (and in any event within 24 hours) provide to Parent, or provide
Parent access to, any such non-public information concerning the Company Group that is provided to any such Person or its Representatives
that was not previously provided to Parent or its Representatives; and (iii) participate or engage in discussions or negotiations with
any such Person (and such Representatives and financing sources) with respect to an Acquisition Proposal. Subject to the terms of Section 5.3(b),
from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and
the Effective Time, the Company Group will not, will cause its directors, officers and employees not to, and will instruct its other
Representatives not to, and will not knowingly permit its other Representatives to, directly or indirectly, (1) solicit, initiate,
propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that
constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (2) furnish
to any Person (other than to Parent or any designees of Parent) any non-public information relating to the Company Group or afford to
any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company
Group (other than Parent
or any designees
of Parent), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate
or assist, any proposal or inquiry that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (3) participate
or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (other than informing such Persons of
the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal to the extent necessary to
clarify the terms of the Acquisition Proposal); (4) approve, endorse or recommend any proposal that constitutes, or could reasonably
be expected to lead to, an Acquisition Proposal; or (5) enter into any letter
of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction,
other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition
agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). The Company
will immediately cease, and will cause its directors, officers and employees to immediately cease, and will use its reasonable best efforts
to cause its other Representatives to immediately cease, any and all discussions or negotiations that existed on or prior to the date
of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. The Company will (A) promptly request
the return or destruction of all non-public information concerning the Company Group furnished to any Person that has executed a confidentiality
agreement since January 16, 2023 in connection with any Acquisition Proposal; (B) cease providing any further information with respect
to the Company Group or any Acquisition Proposal to any such Person or its Representatives; and (C) promptly terminate all access
granted to any such Person and its Representatives to any physical or electronic data room. Notwithstanding anything herein to the contrary,
the Company will not be required to enforce, and will be permitted to grant a waiver, amendment or release under any provision of any
standstill or confidentiality agreement solely to the extent that (x) such waiver, amendment or release would allow a confidential proposal
(or amendment to a confidential proposal) being made to Company or the Special Committee or would otherwise allow a Person to engage
with the Company and its Representatives in discussions regarding a confidential proposal, Acquisition Proposal or other proposal that
would be reasonably likely to lead to an Acquisition Proposal or (y) the Special Committee has determined that the failure to do so would
be inconsistent with its fiduciary duties pursuant to applicable law.
(b)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, from the date hereof until
the Company’s receipt of the Requisite Stockholder Approval, the Company and the Special Committee may, directly or indirectly through
one or more of their Representatives (including the Advisor), contact the Person or group of Persons making such Acquisition Proposal
to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected
to result in, a Superior Proposal, participate or engage in discussions or negotiations with, furnish any non-public information relating
to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any
personnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made
or delivered to the Company an Acquisition Proposal after the date hereof, in each case with respect to an Acquisition Proposal that did
not result from any material breach of Section 5.3(a); provided, however, that prior thereto, the Special Committee has
determined in good faith (after consultation with its financial advisor and outside legal counsel) that (i) such Acquisition Proposal
either constitutes a Superior Proposal or is reasonably expected to lead to a Superior Proposal, and (ii) the failure to take the actions
contemplated by this Section 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable law; and provided further,
however, that the Company will promptly (and in any event within 24 hours) make available to Parent any non-public information
concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent;
and provided further, however, that if any such Person or its Representatives is a competitor of the Company Group, the
Company Group shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive
non-public information to such Person in connection with any actions permitted by this Section 5.3(b) other than in accordance with
“clean
room” or other similar procedures designed to limit any potential adverse effect on the Company from sharing such information.
(c)
No Change in Company Board Recommendation or Entry into an Alternative Acquisition Agreement. Except as provided by Section 5.3(d),
at no time after the date hereof may the Company Board (or a committee thereof including the Special Committee):
(i)
(A) withhold, withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, the
Company Board Recommendation in a manner adverse to Parent in any material respect; (B) adopt, approve, endorse, recommend or otherwise
declare advisable an Acquisition Proposal; (C) fail to publicly reaffirm the Company Board Recommendation, within ten Business Days
after Parent so requests in writing or in connection with the public disclosure by the Company of an Acquisition Proposal (other than
of the type referred to in the following clause (D)) by any Person other than Parent and Merger Sub; provided, however, that the Company
shall not be required to make such reaffirmation more than once in respect of such public disclosure of an Acquisition Proposal except
in connection with any material amendment of such Acquisition Proposal (and no more than once in connection with each such amendment);
(D) take any formal action or make any recommendation or public statement in connection with a tender or exchange offer, other than
a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or a committee thereof
including the Special Committee) to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially
similar communication), or fail to recommend against any tender or exchange offer (it being understood that the Company Board (or a committee
thereof including the Special Committee) may refrain from taking a position with respect to an Acquisition Proposal that is a tender or
exchange offer until the close of business on the tenth Business Day after the commencement of a tender or exchange offer in connection
with such Acquisition Proposal without such action being considered a violation of this Section 5.3); or (E) fail to include
the Company Board Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Company Board Recommendation
Change”); provided, however, that, for the avoidance of doubt, none of (1) the determination by the Special
Committee that an Acquisition Proposal constitutes a Superior Proposal or (2) the delivery by the Company to Parent of any notice
contemplated by Section 5.3(d) will constitute a Company Board Recommendation Change; or
(ii)
cause or permit the Company Group to enter into an Alternative Acquisition Agreement.
(d)
Company Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary
set forth in this Agreement, at any time prior to obtaining the Requisite Stockholder Approval:
(i)
other than in connection with a bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee
thereof), upon the recommendation of the Special Committee, may effect a Company Board Recommendation Change in response to any material
event, occurrence or development or material change in circumstances with respect to the Company and its Subsidiaries, taken as a whole,
that (A) was not actually known to, or reasonably expected by, the Special Committee or the Company Board as of the date hereof;
and (B) does not relate to (1) any Acquisition Proposal; or (2) the mere fact, in and of itself, that the Company meets
or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating
metrics for any period ending on or after the date hereof, or changes after the date hereof in the market price or trading volume of the
Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this
clause (B) may be considered and taken into account) (each such event, an “Intervening Event”), if the Special
Committee determines in good faith (after consultation with its financial
advisor
and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable law and if
and only if:
(1)
the Company has provided prior written notice to Parent at least five Business Days in advance to the effect that the Company Board
(or a committee thereof), upon the recommendation of the Special Committee, has (A) so determined; and (B) resolved to effect
a Company Board Recommendation Change pursuant to this Section 5.3(d)(i), which notice will specify the applicable Intervening Event
in reasonable detail; and
(2)
prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such five Business Day
period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to
make such adjustments to the terms and conditions of this Agreement so that the Special Committee no longer determines that the failure
to make a Company Board Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant
to applicable law; or
(ii)
if the Company has received a bona fide Acquisition Proposal after the date hereof that the Special Committee has concluded in
good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board, upon
the recommendation of the Special Committee, may (A) effect a Company Board Recommendation Change with respect to such Acquisition
Proposal; or (B) authorize the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect
to such Acquisition Proposal, in each case if and only if:
(1)
the Special Committee determines in good faith (after consultation with its financial advisor and outside legal counsel) that the
failure to do so would be inconsistent with its fiduciary duties pursuant to applicable law;
(2)
the Company Group and its Representatives have complied in all material respects with their obligations pursuant to this Section
5.3 with respect to such Acquisition Proposal;
(3)
(i) the Company has provided prior written notice to Parent at least five Business Days in advance (the “Notice Period”)
to the effect that the Company Board (or a committee thereof), upon the recommendation of the Special Committee, has (A) received
a bona fide Acquisition Proposal that has not been withdrawn; (B) concluded in good faith that such Acquisition Proposal constitutes
a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to
this Section 5.3(d)(ii) absent any revision to the terms and conditions of this Agreement, which notice will include the identity
of the Person or “group” of Persons making such Acquisition Proposal, the material terms thereof and copies of all relevant
documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination,
the Company and its Representatives, during the Notice Period, must have negotiated with Parent and its Representatives in good faith
(to the extent that Parent desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such
Acquisition Proposal would cease to constitute a Superior Proposal; provided, however, that in the event of any material
revisions to such Acquisition Proposal, the Company will be required to deliver a new written notice to Parent and to comply with the
requirements of this Section 5.3(d)(ii)(2) with respect to such new written notice (it being understood that the “Notice Period”
in respect of such new written notice will be three Business Days); and
(4)
in the event of any termination of this Agreement in order to cause or permit the Company Group to enter into an Alternative Acquisition
Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(h),
including
with respect to complying with its obligation to pay the Company Termination Fee in accordance with Section 8.3(b)(iii).
(e)
Notice. From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII
and the Effective Time, the Company will promptly (and, in any event, within 24 hours following the receipt thereof) notify Parent if
any inquiries, offers or proposals that constitute an Acquisition Proposal are received by the Company or any of its Representatives or
any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company
or any of its Representatives with respect to an Acquisition Proposal. Such notice must include (i) the identity of the Person or
“group” of Persons making such offers or proposals (unless, in each case, such disclosure is prohibited pursuant to the terms
of any confidentiality agreement with such Person or “group” of Persons that is in effect on the date of this Agreement);
and (ii) a summary of the material terms and conditions of such offers or proposals. Thereafter, the Company must keep Parent reasonably
informed, on a prompt basis (and, in any event, within 24 hours) of any modification of the material terms of any inquiry, offer or proposal
(including any amendments thereto) and any material changes and developments in the status of any discussions or negotiations.
(f)
Certain Disclosures. Nothing in this Agreement will prohibit the Company or the Company Board (or a committee thereof including
the Special Committee) from (i) taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) promulgated
under the Exchange Act or complying with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen”
communication by the Company Board (or a committee thereof including the Special Committee) to the Company Stockholders pursuant to Rule 14d-9(f)
promulgated under the Exchange Act (or any substantially similar communication); (ii) complying with Item 1012(a) of Regulation M-A
promulgated under the Exchange Act; (iii) informing any Person of the existence of the provisions contained in this Section 5.3;
or (iv) making any disclosure to the Company Stockholders (including regarding the business, financial condition or results of operations
of the Company Group) that the Company Board (or a committee thereof, including the Special Committee) has determined to make in good
faith in order to comply with applicable law, regulation or stock exchange rule or listing agreement, it being understood that any such
statement or disclosure made by the Company Board (or a committee thereof, including the Special Committee) pursuant to this Section 5.3(f)
must be subject to the terms and conditions of this Agreement and will not limit or otherwise affect the obligations of the Company or
the Company Board (or any committee thereof including the Special Committee) and the rights of Parent under this Section 5.3, it
being understood that nothing in the foregoing will be deemed to permit the Company or the Company Board (or a committee thereof including
the Special Committee) to effect a Company Board Recommendation Change other than in accordance with Section 5.3(d). In addition,
it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company or the Company
Board (or a committee thereof including the Special Committee), to the extent required by law, that describes the Company’s receipt
of an Acquisition Proposal, the identity of the Person making such Acquisition Proposal, the material terms of such Acquisition Proposal
and the operation of this Agreement with respect thereto will not, in and of itself, be deemed to be (A) a withholding, withdrawal,
amendment, or modification, or proposal by the Company Board (or a committee thereof) to withhold, withdraw, amend or modify, the Company
Board Recommendation; (B) an adoption, approval or recommendation with respect to such Acquisition Proposal; or (C) a Company
Board Recommendation Change.
(g)
Breach by Representatives. The Company will not authorize, direct or knowingly permit any consultant or employee of the
Company to breach this Section 5.3, and upon becoming aware of any breach or threatened breach of this Section 5.3 by a consultant
or employee of the Company, shall use its reasonable best efforts to stop such breach or threatened breach.
Article VI
ADDITIONAL COVENANTS
6.1
Required Action and Forbearance; Efforts.
(a)
Reasonable Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, the Buyer Parties, on
the one hand, and the Company, on the other hand, will use their respective reasonable best efforts to (A) take (or cause to be taken)
all actions; (B) do (or cause to be done) all things; and (C) assist and cooperate with the other Parties in doing (or causing
to be done) all things, in each case, as are necessary, proper or advisable pursuant to applicable law or otherwise to consummate and
make effective, in the most expeditious manner practicable, the Merger, including by:
(i)
subject to Section 6.2 with respect to Antitrust Laws, (1) obtaining all consents, waivers, approvals, orders and authorizations
from Governmental Authorities; and (2) making all registrations, declarations and filings with Governmental Authorities, in each
case, that are necessary or advisable to consummate the Merger;
(ii)
obtaining all consents, waivers and approvals and delivering all notifications pursuant to any Material Contracts in connection
with this Agreement and the consummation of the Merger so as to maintain and preserve the benefits to the Surviving Corporation of such
Material Contracts as of and following the consummation of the Merger; and
(iii)
executing and delivering any Contracts and other instruments that are reasonably necessary to consummate the Merger.
(b)
No Omission to Take Necessary Action. In addition to the foregoing, subject to the terms and conditions of this Agreement
(including subject to clause (D) of the second sentence of Section 6.2(a)), neither the Buyer Parties, on the one hand, nor the Company,
on the other hand, will take any action, or omit to take any action, which action or omission is intended to or has (or would reasonably
be expected to have) the effect of preventing, impairing, delaying or otherwise adversely affecting (i) the consummation of the Merger;
or (ii) the ability of such Parties to fully perform their obligations pursuant to this Agreement. For the avoidance of doubt, no
action by the Company taken in compliance with Section 5.3 will be considered a violation of this Section 6.1.
(c)
No Consent Fee. Notwithstanding anything to the contrary set forth in this Section 6.1 or elsewhere in this Agreement,
the Company Group will not be required to agree to the payment of a consent fee, “profit sharing” payment or other consideration
(including increased or accelerated payments), the provision of additional security (including a guarantee), or otherwise make any accommodation,
commitment or incur any liability or obligation to any third party, in connection with the Merger, including in connection with obtaining
any consent pursuant to any Material Contract.
6.2
Filings.
(a)
Filing Under the HSR Act. The Buyer Parties (and their respective Affiliates, if applicable), on the one hand, and the Company
(and its Subsidiaries, if applicable), on the other hand, will, to the extent required in the reasonable judgment of counsel to Parent
and the Company, (i) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to this Agreement
and the Merger as required by the HSR Act within ten Business Days following the date hereof; provided that in the event that the
FTC and/or the Antitrust Division of the DOJ is closed or not accepting such filings under the HSR Act (a
“Government
Closure”), such day shall be extended day-for-day, for each Business Day the Government Closure is in effect; and (ii) as
soon as practicable after the date of this Agreement file comparable pre-merger or post-merger notification filings, forms and submissions
with any Governmental Authority (including in draft form where applicable) pursuant to any other applicable Antitrust Laws, with Parent
having primary responsibility for the making of such filings. Each of Parent and the Company will use reasonable efforts to (A) cooperate
and coordinate (and cause its respective Affiliates to cooperate and coordinate) with the other in the making of such filings; (B) supply
the other (or cause the other to be supplied) with any information that may be required in order to make such filings; (C) supply
(or cause the other to be supplied) any additional information that may be required or requested by the FTC, the DOJ or the Governmental
Authorities of any other applicable jurisdiction in which any such filing is made; and (D) subject to the limitations set forth
in Section 6.2(b), take all action necessary to (1) cause the expiration or termination of the applicable waiting periods (including
where applicable, by way of a positive clearance decision) pursuant to the HSR Act and any other applicable Antitrust Laws, including
requesting early termination of the HSR waiting period; and (2) obtain the required consents pursuant to any other applicable Antitrust
Laws, in each case as soon as practicable. If any Party or Affiliate thereof receives a request for additional information or documentary
material from any Governmental Authority with respect to the Merger pursuant to the HSR Act or any other applicable Antitrust Laws, then
such Party will make (or cause to be made), as soon as reasonably practicable and after consultation with the other Parties, an appropriate
response to such request.
(b)
Impediments. Notwithstanding anything to the contrary contained in this Agreement, neither any Buyer Party nor any of their
respective Affiliates shall be required to or agree to, and without the prior written consent of Parent, the Company and its Subsidiaries
shall not, (i) offer, negotiate, commit to or effect the sale, divestiture, license or other disposition, by consent decree, hold separate
or otherwise, of any of the assets, properties or businesses of the Buyer Parties (or their Affiliates) or any assets, properties or businesses
of the Company Group, (ii) terminate, modify, or assign any existing relationships, joint ventures, Contracts, or obligations of any of
the Buyer Parties or any of their respective Affiliates or of the Company Group, (iii) modify any course of conduct regarding future operations
of any of the Buyer Parties or any of their respective Affiliates, or of the Company Group, (iv) undertake or agree to any requirement
or obligation to provide prior notice to, or obtain prior approval from, any Governmental Authority with respect to any transaction or
(v) offer, negotiate or commit to any other restrictions on the activities of any of the Buyer Parties or any of their respective Affiliates
or of the Company Group, including the freedom of action of any of the Buyer Parties or any of their respective Affiliates or of the Company
Group with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers,
assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant
to this Agreement. Subject to and without limiting this Section 6.2(b), the Company shall, and shall cause its Affiliates and Representatives
to, reasonably cooperate, with Parent and its Affiliates on any sale, divestiture, license, hold separate, or other action undertaken
or proposed to be undertaken by the Buyer Parties which the Buyer Parties reasonably conclude, in good faith, may be necessary to consummate
and make effective the Merger; provided, however, that neither Parent, nor Merger Sub, the Company nor their respective Subsidiaries shall
have an obligation to offer, negotiate, commit to or effect any of the foregoing actions, if such action is not conditioned on the closing
of the Merger.
(c)
Cooperation. In furtherance and not in limitation of the foregoing, the Company and the Buyer Parties shall (and shall cause
their respective Affiliates to), subject to any restrictions under applicable laws, (i) promptly notify the other Parties of, and,
if in writing, furnish the others with copies of (or, in the case of oral communications, advise the others of the contents of) any material
communication received by such Person from a Governmental Authority in connection with the Merger and permit the other Parties to review
and discuss in advance (and to consider in good faith any comments made by the other parties in relation to) any proposed draft notifications,
formal notifications, filing, submission or other written communication (and any analyses, memoranda, white papers, presentations, correspondence
or other documents submitted
therewith)
made in connection with the Merger to a Governmental Authority; (ii) keep the other Parties reasonably informed with respect to
the status of any such submissions and filings to any Governmental Authority in connection with the Merger and any material developments,
meetings or discussions with any Governmental Authority in respect thereof, including with respect to (A) the receipt of any non-action,
action, clearance, consent, approval or waiver, (B) the expiration of any waiting period, (C) the commencement or proposed
or threatened commencement of any investigation, litigation or administrative or judicial action or proceeding under applicable laws
and (D) the nature and status of any objections raised or proposed or threatened to be raised by any Governmental Authority with
respect to the Merger; and (iii) not independently participate in any meeting, hearing, proceeding or material discussions (whether in
person, by telephone or otherwise) with or before any Governmental Authority in respect of the Merger without giving the other Parties
reasonable prior notice of such meeting or discussions and, unless prohibited by such Governmental Authority, the opportunity to attend
or participate. However, each of the Company and the Buyer Parties and their respective Affiliates, if applicable, may designate any
non-public information provided to any Governmental Authority as restricted to “outside counsel” only and any such information
shall not be shared with employees, officers or directors or their equivalents of the other Party without approval of the Party providing
the non-public information; provided, however, that each of the Company and the Buyer Parties and their respective Affiliates,
if applicable, may redact any valuation and related information, or information that is protected by legal privilege, before sharing
any information provided to any Governmental Authority with another Party on an “outside counsel” only basis. Notwithstanding
anything herein to the contrary, Parent shall have the right to control and (having taken into consideration in good faith all comments,
proposals and suggestions made by the Company) direct the process, strategy and determinations with respect to any Antitrust Law in connection
with the Merger, including in dealing with any Governmental Authority with respect thereto. Neither Parent nor the Company will (and
each of the Company and Parent will cause their Subsidiaries and affiliates not to) agree to stay, toll or extend any applicable waiting
period under any Antitrust Law or enter into or extend a timing agreement with any Governmental Authority, without the prior written
consent of the other party.
(d)
Limitation on Other Transactions. During the period commencing with the execution and delivery of this Agreement and continuing
until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing, unless the Company otherwise
consents in writing, Parent and Merger Sub will not acquire or agree to acquire by merging or consolidating with, by purchasing a portion
of the assets of or equity in, or by acquiring in any other manner, any brand or business set forth in Section 6.2(d) of the Company Disclosure
Letter.
6.3
Proxy Statement, Schedule 13E-3 and Other Required SEC Filings.
(a)
Proxy Statement. Promptly (but in no event later than 45 days) following the date hereof, the Company will prepare and file
with the SEC a preliminary proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company
Stockholder Meeting. Subject to Section 5.3(d), the Company must include the Company Board Recommendation in the Proxy Statement; provided,
that if the Company Board shall have effected a Company Board Recommendation Change in accordance with Section 5.3(d), then in submitting
this Agreement to the Company Stockholders, the Company Board may submit this Agreement to the Company Stockholders without the Company
Board Recommendation, in which event the Company Board or the Special Committee may communicate the basis for its lack of recommendation
to the Company Stockholders in the Proxy Statement or an appropriate amendment thereof or supplement thereto. The Company will use its
reasonable best efforts to cause the Proxy Statement to comply as to form in all material respects with the applicable requirements of
the Exchange Act and the rules of the SEC and Nasdaq. Parent agrees to provide or cause to be provided all information with respect to
itself, its Affiliates and their respective Representatives as may be reasonably requested by the Company for inclusion in the Proxy Statement
and any such other filings.
(b)
Schedule 13E-3. Promptly (but in no event later than 45 days) following the date hereof, the Company and Parent shall jointly
prepare and file with the SEC a Rule 13E-3 transaction statement on Schedule 13E-3 relating to the adoption of this Agreement by the Company
Stockholders (the “Schedule 13E-3”). The Company, Parent and Merger Sub shall jointly assist and cooperate in the preparation
of the Schedule 13E-3 and the resolution of any comments thereto received from the SEC. The Company and the Buyer Parties will use their
respective best efforts to cause the Schedule 13E-3, as to themselves and their Affiliates, to comply as to form in all material respects
with the applicable requirements of the Exchange Act and the rules of the SEC, Nasdaq, NYSE and TSX. The information supplied by the Company,
the Buyer Parties and their respective Affiliates for inclusion or incorporation by reference in the Schedule 13E-3 will not, at the time
that the Schedule 13E-3 is filed with the SEC, the date of mailing to the Company Stockholders and at the time of the Company Stockholder
Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the
foregoing, no covenant is made by the Company with respect to any information supplied by the Buyer Parties or any of their Affiliates
in writing expressly for inclusion or incorporation by reference in the Schedule 13E-3 and no covenant is made by the Buyer Parties with
respect to any information supplied by the Company in writing expressly for inclusion or incorporation by reference in the Schedule 13E-3.
(c)
Other Required Company Filing. If the Company determines that it is required to file any document other than the Proxy Statement
with the SEC in connection with the Merger pursuant to applicable law (such document, as amended or supplemented, an “Other Required
Company Filing”), then the Company will promptly prepare and file such Other Required Company Filing with the SEC. The Company
will use its reasonable best efforts to cause any Other Required Company Filing to comply as to form in all material respects with the
applicable requirements of the Exchange Act and the rules of the SEC and Nasdaq. The Company may not file the Proxy Statement, the Schedule
13E-3 or any Other Required Company Filing with the SEC without first providing Parent and its counsel a reasonable opportunity to review
and comment thereon, and the Company will give due consideration to all reasonable additions, deletions or changes suggested thereto by
Parent or its counsel. On the date of filing, the date of mailing to the Company Stockholders (if applicable) and at the time of the Company
Stockholder Meeting, neither the Proxy Statement nor any Other Required Company Filing will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not false or misleading. Notwithstanding the foregoing, no covenant is made by the Company
with respect to any information supplied by the Buyer Parties or any of their Affiliates in writing expressly for inclusion or incorporation
by reference in the Proxy Statement or any Other Required Company Filing. The information supplied by the Company for inclusion or incorporation
by reference in any Other Required Parent Filings will not, at the time that such Other Required Parent Filing is filed with the SEC,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they are made, not misleading.
(d)
Other Required Parent Filing. If Parent determines that any Buyer Party (or any of their respective Affiliates, if applicable)
is required to file any document with the SEC in connection with the Merger or the Company Stockholder Meeting pursuant to applicable
law (an “Other Required Parent Filing”), then the Buyer Parties will, and will cause their respective Affiliates to,
promptly prepare and file such Other Required Parent Filing with the SEC. The Buyer Parties will cause, and will cause their respective
Affiliates to cause, any Other Required Parent Filing to comply as to form in all material respects with the applicable requirements of
the Exchange Act and the rules of the SEC, NYSE and TSX. Neither the Buyer Parties nor any of their respective Affiliates may file the
Schedule 13E-3 or any Other Required Parent Filing (or any amendment thereto) with the SEC without first providing the Company and its
counsel a reasonable opportunity to review and comment thereon, and Parent will give due consideration to all reasonable additions, deletions
or
changes
suggested thereto by the Company or its counsel. On the date of filing, the date of mailing to the Company Stockholders (if applicable)
and at the time of the Company Stockholder Meeting, no Other Required Parent Filing may contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not false or misleading. Notwithstanding the foregoing, no covenant is made by the Buyer Parties
with respect to any information supplied by the Company in writing expressly for inclusion or incorporation by reference in any Other
Required Parent Filing. The information supplied by the Buyer Parties and their respective Affiliates for inclusion or incorporation
by reference in the Proxy Statement or any Other Required Company Filing will not, at the time that the Proxy Statement or such Other
Required Company Filing is filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not
misleading.
(e)
Furnishing Information. Each of the Company, on the one hand, and the Buyer Parties, on the other hand, will furnish all
information concerning it and its Affiliates, if applicable, as the other Party may reasonably request in connection with the preparation
and filing with the SEC of the Proxy Statement, the Schedule 13E-3 and any Other Required Company Filing or any Other Required Parent
Filing. If at any time prior to the Company Stockholder Meeting any information relating to the Company, the Buyer Parties or any of their
respective Affiliates should be discovered by the Company, on the one hand, or Parent, on the other hand, that should be set forth in
an amendment or supplement to the Proxy Statement, the Schedule 13E-3, any Other Required Company Filing or any Other Required Parent
Filing, as the case may be, so that such filing would not include any misstatement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, then the Party that discovers such information will promptly notify the other, and an appropriate amendment or supplement
to such filing describing such information will be promptly prepared and filed with the SEC by the appropriate Party and, to the extent
required by applicable law or the SEC or its staff, disseminated to the Company Stockholders.
(f)
Consultation Prior to Certain Communications. The Company and its Affiliates, on the one hand, and Parent and its Affiliates,
on the other hand, may not communicate in writing with the SEC or its staff with respect to the Proxy Statement, the Schedule 13E-3, any
Other Required Company Filing or any Other Required Parent Filing, as the case may be, without first providing the other Party a reasonable
opportunity to review and comment on such written communication, and each Party will give due consideration to all reasonable additions,
deletions or changes suggested thereto by the other Parties or their respective counsel.
(g)
Notices. The Company, on the one hand, and Parent, on the other hand, will promptly advise the other, of any receipt of
(i) a request by the SEC or its staff for any amendment or revisions to the Proxy Statement, the Schedule 13E-3, any Other Required Company
Filing or any Other Required Parent Filing, as the case may be; (ii) comments from the SEC or its staff on the Proxy Statement, the
Schedule 13E-3, any Other Required Company Filing or any Other Required Parent Filing, as the case may be; or (iii) a request by
the SEC or its staff for additional information in connection therewith.
(h)
Dissemination of Proxy Statement and Schedule 13E-3. Subject to applicable law, the Company will use its reasonable best
efforts to cause the Proxy Statement and Schedule 13E-3 to be disseminated to the Company Stockholders as promptly as reasonably practicable
following the filing thereof with the SEC and confirmation from the SEC that it will not review, or that it has completed its review of,
the Proxy Statement and the Schedule 13E-3.
6.4
Company Stockholder Meeting.
(a)
Call of Company Stockholder Meeting. Subject to the provisions of this Agreement, the Company will take all action necessary
in accordance with the DGCL, the Exchange Act, the Charter, the Bylaws and the rules of Nasdaq to establish a record date for (and the
Company will not change the record date without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned
or delayed)) and, duly call, give notice of, convene and hold, a meeting of its stockholders (the “Company Stockholder Meeting”),
in each case, as promptly as reasonably practicable following the mailing of the Proxy Statement and the Schedule 13E-3 to the Company
Stockholders for the purpose of obtaining the Requisite Stockholder Approval. Within five Business Days after the date of this Agreement
(and thereafter, upon the reasonable request of Parent made not more than one time every two weeks), the Company shall conduct a “broker
search” in accordance with Rule 14a-13 of the Exchange Act assuming that, for such purposes only, the record date of the Company
Stockholder Meeting will be 20 Business Days after the date the broker search is conducted. Notwithstanding anything to the contrary in
this Agreement, the Company will not be required to convene and hold the Company Stockholder Meeting at any time prior to the 20th Business
Day following the mailing of the Proxy Statement and the Schedule 13E-3 to the Company Stockholders. Subject to Section 5.3(d) and
unless there has been a Company Board Recommendation Change, the Company will use its reasonable best efforts to solicit proxies to obtain
the Requisite Stockholder Approval.
(b)
Adjournment of Company Stockholder Meeting. Notwithstanding anything to the contrary in this Agreement, nothing will prevent
the Company from postponing or adjourning the Company Stockholder Meeting if (i) there are holders of an insufficient number of shares
of the Company Common Stock present or represented by proxy at the Company Stockholder Meeting to constitute a quorum at the Company Stockholder
Meeting or to obtain the Requisite Stockholder Approval (it being understood that the Company may not postpone or adjourn the Company
Stockholder Meeting more than two times pursuant to this clause (i) without Parent’s prior written consent) (which consent shall
not be unreasonably withheld, conditioned or delayed); (ii) to allow reasonable additional time to solicit additional proxies if the Company
has not received proxies representing a sufficient number of shares of Common Stock to adopt this Agreement, whether or not a quorum is
present; (iii) the Company is required to postpone or adjourn the Company Stockholder Meeting by applicable law, order or a request
from the SEC or its staff or (iv) to the extent necessary to ensure that any supplement or amendment to the Proxy Statement that is required
by applicable law is provided to the Company Stockholders within a reasonable amount of time in advance of the Company Stockholder Meeting.
Unless this Agreement is validly terminated in accordance with Section 8.1, the Company will submit this Agreement to the Company
Stockholders at the Company Stockholder Meeting for the purpose of obtaining the Requisite Stockholder Approval even if the Company Board
(or a committee thereof), upon the recommendation of the Special Committee, has effected a Company Board Recommendation Change.
6.5
Cooperation With Debt Financing.
(a)
Cooperation with Debt Financing. Prior to the Effective Time, and in all cases subject to the limitations set forth herein,
the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause its Representatives
to, provide all reasonable and customary cooperation as may be reasonably requested by Parent to assist Parent in the arrangement and
consummation of any debt financing obtained in connection with the transactions contemplated by this Agreement (the “Debt Financing”).
Such cooperation shall include (i) preparing and furnishing all financial and other pertinent information that is available regarding
the Company and its Subsidiaries that is reasonably requested by Parent and that is required in connection with or proper for the Debt
Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable
industry as the Company; provided, however, that no member of the Company Group will be required to provide any information
or assistance with respect to the preparation of pro forma financial statements and forecasts of
financing
statements, including relating to (A) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder
or the fees and expenses relating thereto; (B) the determination of any post-Closing or pro forma cost savings, synergies, capitalization,
ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing;
or (C) any financial information related to Parent or any of its Subsidiaries or any adjustments whether or not directly related to the
acquisition of the Company Group; (ii) if reasonably requested by Parent, upon reasonable prior notice and at times and locations to
be mutually agreed, participating in a reasonable number of meetings, presentations and due diligence sessions and sessions with rating
agencies, (iii) reasonably facilitating the pledging of collateral, provided that no such documents or agreements shall be effective
prior to the Effective Time, (iv) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested
by Parent to permit the consummation of the Debt Financing and (iv) promptly furnishing (but in no event later than three (3) Business
Days prior to the Closing Date) Parent and any lenders involved in such Debt Financing with all documentation and other information about
the Company Group as is reasonably requested in writing by Parent as may be required under applicable “know your customer”
and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing at least ten (10)
Business Days prior to the Closing Date.
(b)
Obligation of the Company. Nothing in this Section 6.5 will require the Company Group to (i) waive or amend any terms of
this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide
any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on
behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to
the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date (other than customary authorization
letters in connection with the Debt Financing); (iii) give any indemnities in connection with the Debt Financing that are effective prior
to the Effective Time and only to the extent previously agreed in writing by the Company; (iv) take any action that, in the good faith
determination of the Company, would unreasonably interfere with the conduct of the business of the Company Group or create an unreasonable
risk of damage or destruction to any property or assets of the Company Group; (v) provide any authorization letters, presentations, memoranda
or other materials or documents used in the connection with the Debt Financing with respect to which any of the Company Group or their
respective Representatives provided cooperation pursuant to their obligation under this Section 6.5 or any of such documents or materials
containing information based on financial information or data derived from the Company Group’s historical books and records, in
all cases, (x) which does not include language that exculpates the Company Group and their respective Representatives and Affiliates from
any liability in connection with the unauthorized use or misuse by the recipients thereof of all such presentations, memoranda and other
materials and documents and information set forth therein, and (y) which the Company and its Representatives have not been given reasonable
opportunity to review and comment on; (vi) prepare separate financial statements for any of the Company Group to the extent not customarily
prepared by the Company Group and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any
resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Closing; (viii) provide
any legal opinion prior to the Closing; or (ix) take any action that will conflict with or violate its organizational documents or any
applicable laws or would result in a material violation or breach of, or default under, any material agreement to which any member of
the Company Group is a party. In addition, (A) no action, liability or obligation of the Company Group or any of its Representatives pursuant
to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization
letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained
in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s
historical books and records)) will be effective until the Effective Time, and the Company Group will not be required to take any action
pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters (including with
respect
to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing
materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and
records)) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time; and (B) any
bank information memoranda required in relation to the Debt Financing will contain disclosure reflecting the Parent or its Affiliate,
the Surviving Corporation or its Subsidiaries as the obligor. Nothing in this Section 6.5 will require (1) any officer, employee or Representative
of the Company Group to deliver any certificate or opinion or take any other action under this Section 6.5 that could reasonably be expected
to result in personal liability to such officer or Representative; or (2) the Company Board to approve any financing or Contracts related
thereto, effective prior to the Closing Date. For the avoidance of doubt, neither the Company nor any of its Subsidiaries shall be required
to be an issuer or obligor with respect to the Debt Financing prior to the Effective Time.
(c)
Company Notes. Prior to the Effective Date, if requested in writing by the Buyer Parties, the Company shall, and shall cause
each of its Subsidiaries and each of their respective Representatives to, reasonably cooperate with the Buyer Parties to, and take such
actions as are necessary to, allow or effect, as the case may be, (a) (i) consent solicitations (the “Consent Solicitations”)
and/or (ii) offers to purchase, tender offers or exchange offers in connection with the Company Notes (each a “Debt Offer”),
(b) the satisfaction and discharge on the Closing Date of all the outstanding aggregate principal amount of Company Notes (the “Discharge”)
or (c) the conditional redemption of all of the outstanding aggregate principal amount of the Company Notes pursuant to the applicable
provisions of the Company Indenture at the Closing Date (the “Redemption”). The (i) Buyer Parties shall be responsible
for preparation of the necessary documents in connection with the Consent Solicitations with (the “Consent Solicitation Documents”),
(ii) the Buyer Parties shall consult the Company and afford the Company a reasonable opportunity to review and comment on the Consent
Solicitation Documents and will give reasonable and good faith consideration to the comments, if any, raised by the Company and (iii)
the Buyer Parties shall be (or shall cause one or more of its Subsidiaries to be) responsible for the payment of all fees and expenses
in connection with such Consent Solicitation. For the avoidance of doubt, the Buyer Parties shall be permitted to identify and engage
(or, to the extent reasonably requested by the Buyer Parties, request that the Company or its applicable Subsidiary engage) any solicitation
agents and other agents and advisors in connection with the Consent Solicitation. The Consent Solicitations shall be conducted in compliance
with the Company Indenture and the applicable global security governing the Company Notes and with applicable laws, including, for the
avoidance of doubt, applicable SEC rules and regulations. The Company shall, and shall cause its Subsidiaries and shall use its reasonable
best efforts to cause their respective Representatives to, in each case, at the Buyer Parties’ sole expense, provide all cooperation
reasonably requested by the Buyer Parties in connection with any Consent Solicitation, including, without limitation, by (to the extent
requested by the Buyer Parties) executing and delivering the Consent Solicitation Documents, entering into any solicitation agency and
similar agreements related to such Consent Solicitation and participating in the preparation of the Consent Solicitation Documents. Promptly
following the expiration of a Consent Solicitation and subject to the receipt of any requisite consents, (i) the Company shall execute
one or more supplemental indentures to the Company Indenture governing the Company Notes subject to the applicable Consent Solicitation,
in accordance with the terms of the Company Indenture and providing for the amendments contemplated in the Consent Solicitation Documents
and (ii) shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indentures;
provided, however, that notwithstanding the fact that such supplemental indentures may become effective earlier, the proposed amendments
set forth therein shall not become operative until the Effective Time. Any Debt Offer, Redemption and/or Discharge, and all notices or
instructions with respect thereto must be conditioned on the occurrence of the Closing or shall occur on or after the Closing Date. Parent
shall ensure that, at or prior to the Closing, the Buyer Parties shall have funds necessary in connection with any such Consent Solicitation,
Debt Offer, Redemption and/or Discharge. The Parties hereby agree that none of Parent, the Company, any Subsidiary of the Company or any
of the foregoing Person’s respective Representatives shall be required to pay or deposit any amounts required in connection with
a Consent Solicitation, Debt Offer, Redemption or the Discharge,
except to
the extent such amounts have been previously provided by the Buyer Parties to such Person expressly for such purpose. If requested by
the Buyer Parties, the Company shall use its reasonable best efforts to cause its counsel to provide all customary legal opinions customary
or required in connection with the transactions contemplated by this Section 6.5(c) to the extent such legal opinion is customary or
required to be delivered prior to the Closing Date and shall deliver all such officer’s certificates customary or required in connection
with such transactions.
(d)
Confidentiality. All non-public or other confidential information provided by the Company or any of its Representatives
pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent will be permitted
to disclose such information to any financing sources of the Buyer Parties or prospective financing sources of the Buyer Parties and other
financial institutions and investors that may become parties to the Debt Financing (and, in each case, to their respective counsel and
auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are
subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(e)
Reimbursement. Promptly upon request by the Company, Parent will reimburse the Company (or cause the Company to be reimbursed)
for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees of one outside counsel) incurred by
the Company Group in connection with the cooperation of the Company Group contemplated by this Section 6.5; provided that, such
reimbursement shall not include costs and expenses incurred in connection with the preparation of any historical financial statements
or data that would be prepared by the Company, its Subsidiaries, or any of their respective Representatives notwithstanding this Section
6.5.
(f)
Indemnification. The Company Group and its Representatives will be indemnified and held harmless by the Buyer Parties from
and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees of one outside counsel),
interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation
provided pursuant to this Section 6.5 or the provision of information utilized in connection therewith; except to the extent such liabilities,
losses, damages, claims, costs, expenses, interest, awards, judgments, penalties or amounts paid in settlement arise from (i) the gross
negligence, bad faith or willful misconduct of the Company, its Subsidiaries or any of their respective Representatives, or (ii) any historical
information pertaining to the Company and its Subsidiaries provided by the Company or its Subsidiaries in writing to the Parent.
(g)
No Financing Condition. The Buyer Parties acknowledge and agree that obtaining the Debt Financing is not a condition to
the Closing. Except in the case of a Willful and Material breach that has not been cured by the Company within a reasonable period of
time after Parent has provided written notice to the Company of the specific breach, the Company’s breach of this Section 6.5
will not be asserted as the basis for (A) any conditions set forth in Article VII to consummate the Merger having not been satisfied
or (B) the termination of this Agreement pursuant to Section 8.1(e). If the Debt Financing has not been obtained, the Buyer Parties will
each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VII, to consummate the
Merger.
6.6
Anti-Takeover Laws. The Company and the Company Board (and any committee empowered to take such action, if applicable) will
(a) take all actions within their power to ensure that no “anti-takeover” statute or similar statute or regulation is
or becomes applicable to the Merger; and (b) if any “anti-takeover” statute or similar statute or regulation becomes
applicable to the Merger, take all action within their power to ensure that the Merger may be consummated as promptly as practicable on
the terms contemplated by this Agreement and otherwise to minimize or make inapplicable the effect of such statute or regulation on the
Merger.
6.7
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing, the Company will afford Parent
and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, books and records
and personnel of the Company Group, in each case, solely for purposes of consummating the Merger (including for integration planning),
except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that (a) any applicable
law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access
to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or
other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise
bound would violate or cause a default pursuant to, or give a third Person the right terminate or accelerate the rights pursuant to, such
Contract; (d) access would result in the disclosure of any trade secrets of third Persons; or (e) such documents or information
are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates,
on the other hand. Nothing in this Section 6.7 will be construed to require the Company Group or any of its Representatives to prepare
any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this
Section 6.7 will be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company Group
or create a risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company
Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to
perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth
above by electronic means if physical access is not permitted under applicable law. The terms and conditions of the Confidentiality Agreement
will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant
to the access contemplated by this Section 6.7, other than any information that has been made, is or becomes available to Parent
or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements
consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its
public reporting obligations, or that Parent receives or has a right to receive in connection with any franchise, development or other
commercial agreement by and between Parent or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the
other hand. All requests for access pursuant to this Section 6.7 must be directed to the General Counsel of the Company, or another
person designated by the Company.
6.8
Section 16(b) Exemption. The Company will take all actions reasonably necessary to cause the Merger, and any dispositions
of equity securities of the Company (including derivative securities) in connection with the Merger by each individual who is a director
or officer subject to the reporting requirements of Section 16(a) of the Exchange Act of the Company to be exempt pursuant to Rule 16b-3
promulgated under the Exchange Act.
6.9
Directors’ and Officers’ Exculpation, Indemnification and Insurance.
(a)
Indemnified Persons. The Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation
and its Subsidiaries to) honor and fulfill, in all respects, the obligations of the Company Group pursuant to any indemnification agreements
between a member of the Company Group and any of its current or former directors or officers (and any person who becomes a director or
officer of a member of the Company Group prior to the Effective Time) (collectively, the “Indemnified Persons”) or
employees for any acts or omissions by such Indemnified Persons or employees occurring prior to the Effective Time. In addition, during
the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation and its
Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) cause the certificates of incorporation, bylaws,
and other similar
organizational
documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification, exculpation from liabilities
and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions
set forth in the Charter, the Bylaws and the other similar organizational documents of the Subsidiaries of the Company, as applicable,
as of the date hereof. During such six-year period, such provisions may not be repealed, amended or otherwise modified in any adverse
manner except as required by applicable law.
(b)
Indemnification Obligation. Without limiting the generality of the provisions of Section 6.9(a), during the period
commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation will (and Parent
will cause the Surviving Corporation to) indemnify and hold harmless, to the fullest extent permitted by applicable law or pursuant to
any indemnification agreements with the Company and any of its Subsidiaries in effect on the date hereof, each Indemnified Person from
and against any costs, fees and expenses (including attorneys’ fees and investigation expenses), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement or compromise in connection with any Legal Proceeding, whether civil, criminal, administrative
or investigative, to the extent that such Legal Proceeding arises, directly or indirectly, out of or pertains, directly or indirectly,
to (i) any action or omission, or alleged action or omission, in such Indemnified Person’s capacity as an Affiliate, director,
officer, employee or agent of the Company Group or its Affiliates to the extent that such action or omission, or alleged action or omission,
occurred prior to or at the Effective Time; and (ii) the Merger, as well as any actions taken by the Company or the Buyer Parties
with respect thereto (including any disposition of assets of the Surviving Corporation or any of its Subsidiaries that is alleged to have
rendered any of the Surviving Corporation or any of its Subsidiaries insolvent), except that if, at any time prior to the sixth anniversary
of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification pursuant to this
Section 6.9(b), then the claim asserted in such notice will survive the sixth anniversary of the Effective Time until such claim
is fully and finally resolved. In the event of any such Legal Proceeding, (A) the Surviving Corporation will have the right to control
the defense thereof after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Corporation,
on behalf of itself and its Affiliates, will be deemed to have waived any right to object to the Indemnified Person’s entitlement
to indemnification hereunder with respect thereto); (B) each Indemnified Person will be entitled to retain his or her own counsel,
whether or not the Surviving Corporation elects to control the defense of any such Legal Proceeding; (C) the Surviving Corporation
will advance all fees and expenses (including fees and expenses of any counsel) as incurred by an Indemnified Person in the defense of
such Legal Proceeding promptly (and in any event within ten (10) days) after receipt by Parent or the Surviving Corporation of a written
request for such advance to the fullest extent permitted under applicable law, whether or not the Surviving Corporation elects to control
the defense of any such Legal Proceeding; and (D) no Indemnified Person will be liable for any settlement of such Legal Proceeding
effected without his or her prior written consent (unless such settlement relates only to monetary damages for which the Surviving Corporation
is entirely responsible). Notwithstanding anything to the contrary in this Agreement, none of Parent, the Surviving Corporation nor any
of their respective Affiliates will settle or otherwise compromise or consent to the entry of any judgment with respect to, or otherwise
seek the termination of, any Legal Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement
unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability
arising out of such Legal Proceeding.
(c)
D&O Insurance. During the period commencing at the Effective Time and ending on the sixth anniversary of the Effective
Time, the Surviving Corporation will (and Parent will cause the Surviving Corporation to) maintain in effect the Company’s directors’
and officers’ liability insurance in effect on the date hereof (“D&O Insurance”) in respect of acts or omissions
occurring at or prior to the Effective Time on terms (including with respect to coverage, conditions, retentions, limits and amounts)
that are equivalent to those of the D&O Insurance. In satisfying its obligations pursuant to this Section 6.9(c), the Surviving
Corporation will not be obligated to pay annual premiums in excess of 300% of the amount paid by the Company for coverage
for its
last full fiscal year (such 300% amount, the “Maximum Annual Premium”). If the annual premiums of such insurance coverage
exceed the Maximum Annual Premium, then the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available
for a cost not exceeding the Maximum Annual Premium from an insurance carrier with the same or better credit rating as the Company’s
directors’ and officers’ liability insurance carrier on the date hereof. The Company may purchase a prepaid “tail”
policy with respect to the D&O Insurance from an insurance carrier with the same or better credit rating as the Company’s directors’
and officers’ liability insurance carrier on the date hereof on terms (including with respect to coverage, conditions, retentions,
limits and amounts) that are no less favorable than those of the D&O Insurance so long as the aggregate cost for such “tail”
policy does not exceed the Maximum Annual Premium. If the Company elects to purchase such a “tail” policy, the Surviving
Corporation will (and Parent will cause the Surviving Corporation to) maintain such “tail” policy in full force and effect
and continue to honor its obligations thereunder for so long as such “tail” policy is in full force and effect.
(d)
Successors and Assigns. If Parent, the Surviving Corporation or any of their respective successors or assigns will (i) consolidate
with or merge into any other Person and not be the continuing or surviving corporation or entity in such consolidation or merger; or (ii) transfer
all or substantially all of its properties and assets to any Person, then proper provisions will be made so that the successors and assigns
of Parent, the Surviving Corporation or any of their respective successors or assigns will assume all of the obligations of Parent and
the Surviving Corporation set forth in this Section 6.9.
(e)
No Impairment. The obligations set forth in this Section 6.9 may not be terminated, amended or otherwise modified in
any manner that adversely affects any Indemnified Person (or any other person who is a beneficiary pursuant to the D&O Insurance or
the “tail” policy referred to in Section 6.9(c) (and their heirs and representatives)) without the prior written consent
of such affected Indemnified Person or other person. Each of the Indemnified Persons or other persons who are beneficiaries pursuant to
the D&O Insurance or the “tail” policy referred to in Section 6.9(c) (and their heirs and representatives) are intended
to be third party beneficiaries of this Section 6.9, with full rights of enforcement as if such person were a Party. The rights of
the Indemnified Persons (and other persons who are beneficiaries pursuant to the D&O Insurance or the “tail” policy referred
to in Section 6.9(c) (and their heirs and representatives)) pursuant to this Section 6.9 will be in addition to, and not in
substitution for, any other rights that such persons may have pursuant to (i) the Charter and the Bylaws; (ii) the similar organizational
documents of the Subsidiaries of the Company; (iii) any and all indemnification agreements entered into with the Company Group; or
(iv) applicable law (whether at law or in equity).
(f)
Joint and Several Obligations. The obligations of the Surviving Corporation, Parent and their respective Subsidiaries pursuant
to this Section 6.9 will be joint and several.
(g)
Other Claims. Nothing in this Agreement is intended to, or will be construed to, release, waive or impair any rights to
directors’ and officers’ insurance claims pursuant to any applicable insurance policy or indemnification agreement that is
or has been in existence with respect to the Company Group for any of its directors, officers or other employees, it being understood
and agreed that the indemnification provided for in this Section 6.9 is not prior to or in substitution for any such claims pursuant
to such policies or agreements.
6.10
Employee Matters.
(a)
Acknowledgement. Parent hereby acknowledges and agrees that a “change in control” (or similar phrase) within
the meaning of each of the Employee Plans, as applicable, will occur as of the Effective Time.
(b)
Existing Arrangements. Subject to Section 6.10, from and after the Effective Time, the Surviving Corporation will (and
Parent will cause the Surviving Corporation to) honor all of the Employee Plans in accordance with their terms as in effect immediately
prior to the Effective Time. Notwithstanding the foregoing, nothing will prohibit the Surviving Corporation from in any way amending,
modifying or terminating any such Employee Plans in accordance with their terms or if otherwise permitted pursuant to applicable law.
(c)
Employment; Benefits. As of the Closing, the Surviving Corporation or one of its Subsidiaries will continue to employ the
employees of the Company Group as of the Effective Time. From and after the Effective Time until the first anniversary of the Effective
Time (or, if earlier, the termination date of an applicable Continuing Employee), the Surviving Corporation and its Subsidiaries will
(and Parent will cause the Surviving Corporation and its Subsidiaries to) provide each Continuing Employee with an annual base salary
or hourly wage rate (as applicable) and annual (or quarterly, if applicable) cash incentive compensation opportunities, in each case,
that, in the aggregate for such Continuing Employee are no less favorable than the annual base salary or hourly wage rate (as applicable)
and annual (or quarterly, if applicable) cash incentive compensation opportunities, in the aggregate of such Continuing Employee provided
to such Continuing Employee immediately prior to the Effective Time. From and after the Effective Time until December 31, 2024 (or, if
earlier, the termination date of an applicable Continuing Employee), the Surviving Corporation and its Subsidiaries will (and Parent will
cause the Surviving Corporation and its Subsidiaries to) provide each Continuing Employee with all other employee compensation and benefits
(other than defined benefit pension, nonqualified deferred compensation, post-employment or retiree health or welfare, or change in control,
retention or equity-based benefits) that are substantially comparable in the aggregate to those provided to such Continuing Employees
immediately prior to the Effective Time (subject to the same foregoing exclusions). From and after the Effective Time until the first
anniversary of the Effective Time, the Surviving Corporation will (and Parent will cause the Surviving Corporation to) provide severance
benefits to eligible employees in accordance with the Company’s severance plans, guidelines and practices as in effect on the date
hereof that have been made available to Parent prior to the date hereof. Notwithstanding the foregoing, nothing in this Section 6.10
shall obligate the Surviving Corporation and its Subsidiaries to continue the employment of any Continuing Employee for any specific period.
(d)
New Plans. To the extent that a benefit plan of Parent is made available to any Continuing Employee at or after the Effective
Time, the Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) cause
to be granted to such Continuing Employee credit for all service with the Company Group prior to the Effective Time for purposes of eligibility
to participate, vesting and for purposes of future vacation accrual and determining severance amounts, except that (i) such service need
not be credited to the extent that it would result in duplication of coverage or benefits, (ii) such service shall only be credited to
the same extent and for the same purpose as such service was credited under an analogous Employee Plan, and (iii) no service shall be
required to be credited under any plan that provides for equity or equity-based defined benefit pension, deferred compensation or post-employment
or retiree welfare benefits. In addition, and without limiting the generality of the foregoing, the Surviving Corporation shall use commercially
reasonable efforts to ensure that (i) each Continuing Employee will be immediately eligible to participate, without any waiting period,
in any and all employee benefit plans sponsored by the Surviving Corporation and its Subsidiaries to the extent that coverage pursuant
to any such plans (the “New Plan”) replaces coverage previously provided under a comparable Employee Plan in which
such Continuing Employee participates immediately before the Effective Time (such plans, the “Old Plans”); and (ii) during
the plan year in which the Closing Date occurs, for purposes of each New Plan providing medical, dental, pharmaceutical or vision benefits
to any Continuing Employee, (x) the Surviving Corporation will cause all waiting periods, pre-existing condition exclusions, evidence
of insurability requirements and actively-at-work or similar requirements of such New Plan to be waived for such Continuing Employee and
his or her covered dependents, and (y) the Surviving Corporation will cause any eligible expenses incurred by such Continuing Employee
and his or her covered dependents during the portion of the plan year ending on the
Closing
Date to be given full credit pursuant to such New Plan for purposes of satisfying all deductible, coinsurance, co-pay, offsets and
maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year
as if such amounts had been paid in accordance with such New Plan. Any vacation or paid time off accrued but unused by a Continuing Employee
as of immediately prior to the Effective Time will be credited to such Continuing Employee following the Effective Time, and will not
be subject to accrual limits or other forfeiture and will not limit future accruals (except to the extent that such limits or forfeitures
applied under the Employee Plans in effect as of the date hereof).
(e)
No Third Party Beneficiary Rights. Notwithstanding anything to the contrary set forth in this Agreement, this Section 6.10
will not be deemed to (i) guarantee employment for any period of time for, or preclude the ability of Parent, the Surviving Corporation
or any of its Subsidiaries to terminate any Continuing Employee for any reason; (ii) require Parent, the Surviving Corporation or
any of their respective Subsidiaries to continue any Employee Plan or other compensation or benefit plan or arrangement, or prevent the
amendment, modification or termination thereof after the Effective Time; (iii) create any third party beneficiary rights in any Person;
or (iv) establish, amend or modify any benefit plan, program, agreement or arrangement.
(f)
Non-Qualified Deferred Compensation Plan. The Surviving Corporation shall pay (and Parent shall cause the Surviving Corporation
to pay) all amounts that become payable under the Company’s Amended and Restated Deferred Compensation Plan (the “DCP”)
in connection with the Closing, in accordance with the terms of the DCP and in accordance with Section 409A of the Code and the regulations
thereunder.
(g)
401(k) Plan Termination. To the extent requested by Parent in writing no later than ten (10) Business Days prior to the
Effective Time, The Company Board (or the appropriate committee thereof) shall take actions necessary to terminate the Company 401(k)
Plan (the “401(k) Plan”), with such termination to be effective as of the day prior to the Closing Date and contingent
upon the occurrence of the Effective Time. If Parent provides such written notice to the Company, then no later than two (2) days prior
to the Closing Date, the Company shall provide Parent with evidence that the 401(k) Plan has been terminated pursuant to resolutions of
the Company Board (effective as of the day immediately preceding the Closing Date), the form and substance of which shall be subject to
reasonable review and comment by Parent. Parent shall, effective as of the Closing Date, offer participation in Parent’s tax qualified
defined contribution plan (the “Parent 401(k) Plan”) to each Continuing Employee who was an active participant in the
Company 401(k) Plan as of the date of its termination and who satisfies the eligibility requirements of the Parent 401(k) Plan. If elected
by such Continuing Employee in accordance with applicable Law, Parent shall permit the Parent 401(k) Plan to, following the Closing Date,
accept a “direct rollover” to such Parent 401(k) Plan of the account balances (including any participant loans) of such Continuing
Employee.
(h)
Delivery of Materials Related to Employee Plans. Within 30 Business Days following the date of this Agreement, the Company
shall provide or otherwise make available to Parent, with respect to each material Employee Plan, to the extent applicable, (A) true,
correct and complete copies of the plan document (or, if unwritten, a written description of the material terms thereof), or summary plan
description; (B) the most recent annual report on Form 5500 required to have been filed with the IRS for each Employee Plan, including
all schedules thereto; (C) the most recent determination or opinion letter, if any, from the IRS for any Employee Plan that is intended
to qualify pursuant to Section 401(a) of the Code; (D) summary plan descriptions; and (E) any notices to or from the IRS
or any office or representative of the United States Department of Labor or any similar Governmental Authority relating to any material
compliance issues in respect of any such Employee Plan during the past three years. Within thirty (30) Business Days following the date
of this Agreement, the Company shall provide or otherwise make available to Parent, a copy of each Form 1095-B and Form 1095-C, as applicable,
for the last three (3) years.
6.11
Delivery of Subsidiary Organizational Documents. Within 30 Business Days following the date of this Agreement, the Company
shall provide or otherwise make available to Parent, true, correct and complete copies of the certificates of incorporation, bylaws and
other similar organizational documents of each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X
promulgated by the SEC) of the Company, each as amended as of the date hereof.
6.12
Obligations of the Buyer Parties and the Company. Parent will take all action necessary to cause Merger Sub and the Surviving
Corporation to perform their respective obligations pursuant to this Agreement and to consummate the Merger upon the terms and subject
to the conditions set forth in this Agreement. Each of the Buyer Parties will be jointly and severally liable for any breach of this Agreement
by any Buyer Party (or, following the Closing, the Surviving Corporation) or any other failure by any Buyer Party (or, following the Closing,
the Surviving Corporation) to perform and discharge any of its respective covenants, agreements and obligations pursuant to this Agreement.
6.13
Notification of Certain Matters.
(a)
Notification by the Company. At all times during the period commencing with the execution and delivery of this Agreement
and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the
Company will give prompt notice to Parent upon becoming aware that any representation or warranty made by it in this Agreement has become
untrue or inaccurate in any material respect, or of any failure by the Company to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it pursuant to this Agreement, in each case if and only to the extent that
such untruth, inaccuracy, or failure would reasonably be expected to cause any of the conditions to the obligations of the Buyer Parties
to consummate the Merger set forth in Section 7.2(a) or Section 7.2(b) to fail to be satisfied at the Closing, except that no
such notification will affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or the
conditions to the obligations of the Buyer Parties to consummate the Merger or the remedies available to the Parties under this Agreement.
The terms and conditions of the Confidentiality Agreement apply to any information provided to Parent pursuant to this Section 6.13(a).
(b)
Notification by Parent. At all times during the period commencing with the execution and delivery of this Agreement and
continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, Parent
will give prompt notice to the Company upon becoming aware that any representation or warranty made by the Buyer Parties in this Agreement
has become untrue or inaccurate in any material respect, or of any failure by the Buyer Parties to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement, in each case if and only
to the extent that such untruth, inaccuracy or failure would reasonably be expected to cause any of the conditions to the obligations
of the Company to consummate the Merger set forth in Section 7.3(a) or Section 7.3(b) to fail to be satisfied at the Closing,
except that no such notification will affect or be deemed to modify any representation or warranty of the Buyer Parties set forth in this
Agreement or the conditions to the obligations of the Company to consummate the Merger or the remedies available to the Parties under
this Agreement. The terms and conditions of the Confidentiality Agreement apply to any information provided to the Company pursuant to
this Section 6.13(b).
(c)
Impact of Non-Compliance. The Company’s or the Buyer Parties’ failure to comply with this Section 6.13 will
not be taken into account for purposes of determining whether any conditions set forth in Article VII to consummate the Merger have
been satisfied or whether any termination rights set forth in Article VIII are available.
6.14
Public Statements and Disclosure. The Company, Parent and Merger Sub shall consult with and provide each other the opportunity
to review and comment upon any press release or other public statement or comment prior to the issuance of such press release or other
public statement or comment relating to this Agreement or the transactions contemplated hereby and shall not issue any such press release
or other public statement or comment prior to such consultation, except as may be required by applicable law or by obligations pursuant
to any listing agreement with any national securities exchange or as may be requested by a Governmental Authority; provided that the restrictions
in this Section 6.13 shall not apply to (i) any Company communication regarding an Alternative Acquisition Agreement, Superior Proposal
or Intervening Event or from and after a Recommendation Change, in each case, to the extent permitted by Section 5.3 or (ii) any press
release, filings with the SEC or other public statement or comment the contents of which are substantially consistent with prior public
statements and other communications made by the Company, Parent or Merger Sub in compliance with this Agreement. Parent and the Company
agree to issue a joint press release as the first public disclosure of this Agreement.
6.15
Transaction Litigation. Prior to the Effective Time, the Company will provide Parent with prompt notice of all Transaction
Litigation (including by providing copies of all pleadings with respect thereto) and keep Parent reasonably informed with respect to the
status thereof. The Company will (a) give Parent the opportunity to participate in the defense, settlement or prosecution of any
Transaction Litigation; and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation.
The Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding,
any Transaction Litigation unless Parent has consented thereto in writing (which consent will not be unreasonably withheld, conditioned
or delayed). For purposes of this Section 6.15, “participate” means that Parent will be kept apprised of proposed strategy
and other material decisions and filings with respect to the Transaction Litigation by the Company (to the extent that the attorney-client
privilege between the Company and its counsel is not undermined), and Parent may offer comments or suggestions with respect to such Transaction
Litigation but will not be afforded any decision-making power or other authority over such Transaction Litigation except for the settlement
or compromise consent set forth above.
6.16
Stock Exchange Delisting; Deregistration. Prior to the Effective Time, the Company will cooperate with Parent and use its
reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper
or advisable on its part pursuant to applicable law and the rules and regulations of Nasdaq to cause (a) the delisting of the Company
Common Stock from Nasdaq as promptly as practicable after the Effective Time; and (b) the deregistration of the Company Common Stock
pursuant to the Exchange Act as promptly as practicable after such delisting.
6.17
Additional Agreements. If at any time after the Effective Time any further action is necessary or desirable to carry out
the purposes of this Agreement or to vest the Surviving Corporation with full title to all properties, assets, rights, approvals, immunities
and franchises of either of the Company or Merger Sub, then the proper officers and directors of each Party will use their reasonable
best efforts to take such action.
6.18
Parent Vote. Immediately following the execution and delivery of this Agreement, Parent will cause the sole stockholder
of Merger Sub to execute and deliver to Merger Sub and the Company a written consent approving the Merger in accordance with the DGCL.
Parent shall consent to, in its capacity as holder of Company Preferred Stock, the adoption of this Agreement or actions required to be
taken in connection therewith, in its capacity as the purchaser under the Agreement (and not, for the avoidance of doubt, under any Alternative
Acquisition Agreement), or with respect to any Contracts by and between Parent and its Affiliates, on the one hand, and the Company or
any of its Subsidiaries, on the other hand. Parent shall vote or cause to be voted any shares of Company Capital Stock beneficially owned
by it or any of its Subsidiaries or which it or any of its Subsidiaries has the power to cause to be voted, in favor of the adoption of
this Agreement at the Company Stockholder Meeting or any other meeting of stockholders of the Company at which this Agreement
shall be
submitted for adoption, including all adjournments, recesses or postponements thereof; provided that, such agreement to vote in
favor of the adoption of this Agreement shall terminate, and Parent and its Subsidiaries shall have no obligation with respect thereto,
in the event that the Company Board effects a Company Board Recommendation Change.
6.19
Company Credit Agreement. The Company shall use commercially reasonable efforts to (a) to deliver a draft of the Payoff
Letter prior to the Closing Date, (b) to deliver or facilitate the delivery of the executed Payoff Letter at least two (2) Business Day
prior to Closing Date and (c) cooperate with any back-stop, “roll-over” or termination of any existing letters of credit
under the Company Credit Agreement.
Article VII
CONDITIONS TO THE MERGER
7.1
Conditions to Each Party’s Obligations to Effect the Merger. The respective obligations of the Buyer Parties and the
Company to consummate the Merger are subject to the satisfaction or waiver (where permissible pursuant to applicable law) of each of the
following conditions:
(a)
Requisite Stockholder Approval. The Company will have received the Requisite Stockholder Approval at the Company Stockholder
Meeting.
(b)
HSR Clearance. The waiting period (and any extensions thereof) applicable to the Merger pursuant to the HSR Act will have
expired or otherwise been terminated.
(c)
No Prohibitive Laws or Injunctions. No temporary restraining order, preliminary or permanent injunction or other judgment
or order issued by any court of competent jurisdiction in the United States or other legal or regulatory restraint or prohibition in the
United States preventing the consummation of the Merger will be in effect, nor will any action have been taken by any Governmental Authority
of competent jurisdiction in the United States, and no statute, rule, regulation or order in the United States will have been enacted,
entered, enforced or deemed applicable to the Merger, that, in each case, prohibits, makes illegal, or enjoins the consummation of the
Merger. For the avoidance of doubt, the receipt of a Specified Letter by the Buyer Parties or the Company shall not be the basis for concluding
that any conditions set forth in this Article VII to consummate the Merger have not been satisfied.
7.2
Conditions to the Obligations of the Buyer Parties. The obligations of the Buyer Parties to consummate the Merger will be
subject to the satisfaction or waiver (where permissible pursuant to applicable law) of each of the following conditions, any of which
may be waived exclusively by Parent:
(a)
Representations and Warranties.
(i)
Other than the representations and warranties listed in Section 7.2(a)(ii) and Section 7.2(a)(iii), the representations
and warranties of the Company set forth in this Agreement will be true and correct (without giving effect to any materiality or Company
Material Adverse Effect qualifications set forth therein) as of the Closing Date as if made at and as of the Closing Date (except to the
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty
will be true and correct as of such earlier date), except for such failures to be true and correct that would not, individually or in
the aggregate, have a Company Material Adverse Effect.
(ii)
The representations and warranties set forth in Section 3.1 (Organization; Good Standing) (other than the second sentence
thereof), Section 3.2 (Corporate Power; Enforceability), Section 3.3(d) (Anti-Takeover Laws), the last two sentences
of Section 3.7(a) (Company Capitalization –
Capital
Stock), the last sentence of Section 3.7(b) (Company Capitalization – Stock Reservation), Section 3.7(c) (Company
Capitalization – Company Securities) (other than the first sentence thereof), Section 3.7(d) (Company Capitalization –
Other Rights), and 3.12(a)(ii) (Absence of Company Material Adverse Effect) that (A) are not qualified by Company Material
Adverse Effect or other materiality qualifications will be true and correct in all material respects as of the Closing Date as if made
at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date,
in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (B) are
qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding
such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing
Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation
and warranty will be true and correct in all respects as of such earlier date).
(iii)
The representations and warranties set forth in Section 3.7(a) (Company Capitalization – Capital Stock) (other
than the last two sentences thereof), Section 3.7(b) (other than the last sentence thereof) (Company Capitalization – Stock Reservation),
the first sentence of Section 3.7(c) (Company Capitalization – Company Securities) and Section 3.25 (Brokers),
will be true and correct in all respects as of the Closing Date (in each case (A) without giving effect to any Company Material Adverse
Effect or other materiality qualifications; and (B) except to the extent that any such representation and warranty expressly speaks
as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except for any
inaccuracies that are de minimis in nature and amount.
(b)
Performance of Obligations of the Company. The Company will have performed and complied in all material respects with all
covenants, obligations and conditions of this Agreement required to be performed and complied with by it at or prior to the Closing.
(c)
Officer’s Certificate. The Buyer Parties will have received a certificate of the Company, validly executed for and
on behalf of the Company and in the name of the Company by a duly authorized executive officer thereof, certifying that the conditions
set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(d) have been satisfied.
(d)
Company Material Adverse Effect. No Company Material Adverse Effect will have occurred after the date hereof that is continuing.
7.3
Conditions to the Obligations of the Company to Effect the Merger. The obligations of the Company to consummate the Merger
are subject to the satisfaction or waiver (where permissible pursuant to applicable law) of each of the following conditions, any of which
may be waived exclusively by the Company:
(a)
Representations and Warranties. The representations and warranties of the Buyer Parties set forth in this Agreement will
be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except for (i) any
failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the
Merger or the ability of the Buyer Parties to fully perform their respective covenants and obligations pursuant to this Agreement; and
(ii) those representations and warranties that address matters only as of a particular date, which representations will have been
true and correct as of such particular date, except for any failure to be so true and correct that would not, individually or in the aggregate,
prevent or materially delay the consummation of the Merger or the ability of the Buyer Parties to fully perform their respective covenants
and obligations pursuant to this Agreement.
(b)
Performance of Obligations of the Buyer Parties. The Buyer Parties will have performed and complied in all material respects
with all covenants, obligations and conditions of this Agreement required to be performed and complied with by the Buyer Parties at or
prior to the Closing.
(c)
Officer’s Certificate. The Company will have received a certificate of the Buyer Parties, validly executed for and
on behalf of the Buyer Parties and in the respective names of the Buyer Parties by a duly authorized officer thereof, certifying that
the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.
Article VIII
TERMINATION, AMENDMENT AND WAIVER
8.1
Termination. This Agreement may be validly terminated only as follows (it being understood and agreed that this Agreement
may not be terminated for any other reason or on any other basis):
(a)
at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite Stockholder Approval) by mutual
written agreement of Parent and the Company;
(b)
by either Parent or the Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite
Stockholder Approval) if (i) any permanent injunction or other judgment or order issued by a Governmental Authority of competent
jurisdiction in the United States or other legal or regulatory restraint or prohibition imposed by a Governmental Authority in the United
States preventing the consummation of the Merger will be in effect, or any action has been taken by any Governmental Authority of competent
jurisdiction in the United States, that, in each case, prohibits, makes illegal or enjoins the consummation of the Merger and has become
final and non-appealable; or (ii) any statute, rule, regulation or order in the United States will have been enacted, entered, enforced
or deemed applicable to the Merger that prohibits, makes illegal or enjoins the consummation of the Merger, except that the right to terminate
this Agreement pursuant to this Section 8.1(b) will not be available to any Party whose failure to comply with its obligations under
Section 6.2 resulted in the failure to resolve or lift, as applicable, such injunction, action, statute, rule, regulation or order (it
being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing proviso);
(c)
by either Parent or the Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite
Stockholder Approval) if the Closing has not occurred by 11:59 p.m., Eastern time, on November 30, 2024 (the “Termination Date”);
provided that, the right to terminate this Agreement pursuant to this Section 8.1(c) will not be available to (i) (A) Parent
if the Company has the valid right to terminate this Agreement pursuant to Section 8.1(g); or (B) the Company if Parent has
the valid right to terminate this Agreement pursuant to Section 8.1(e); and (ii) any Party whose action or failure to act (which
action or failure to act constitutes a breach by such Party of this Agreement) has been the primary cause of, or primarily resulted in,
either (1) the failure to satisfy the conditions to the obligations of the terminating Party to consummate the Merger set forth in
Article VII prior to the Termination Date; or (2) the failure of the Closing to have occurred prior to the Termination Date
(it being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing proviso);
(d)
by either Parent or the Company, at any time prior to the Effective Time if the Company fails to obtain the Requisite Stockholder
Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger, except
that the right to terminate this Agreement pursuant to this Section 8.1(d) will not be available to any Party whose action or failure
to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the cause of, or resulted
in, the
failure to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof);
(e)
by Parent (whether prior to or after the receipt of the Requisite Stockholder Approval), if the Company has breached or failed
to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement,
which breach or failure to perform would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) except
that (i) if such breach or failure to perform is capable of being cured by the Termination Date, Parent will not be entitled to terminate
this Agreement pursuant to this Section 8.1(e) prior to the delivery by Parent to the Company of written notice of such breach, delivered
at least 45 days prior to such termination (or such shorter period of time as remains prior to the Termination Date), stating Parent’s
intention to terminate this Agreement pursuant to this Section 8.1(e) and the basis for such termination, it being understood that
Parent will not be entitled to terminate this Agreement if such breach or failure to perform has been cured prior to such termination
and (ii) the right to terminate this Agreement pursuant to this Section 8.1(e) will not be available to Parent if it is then in breach
of any provision of this Agreement or has failed to perform or comply with, or there is any inaccuracy of, any of its representations,
warranties, covenants or agreements set forth in this Agreement, which breach, failure to perform or inaccuracy would give rise to the
failure of the conditions set forth in Section 7.3(a) or Section 7.3(b);
(f)
by Parent at any time prior to the receipt of the Requisite Stockholder Approval if the Company Board (or a committee thereof)
has effected a Company Board Recommendation Change;
(g)
by the Company (whether prior to or after the receipt of the Requisite Stockholder Approval), if the Buyer Parties have breached
or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained
in this Agreement, which breach or failure to perform would result in a failure of a condition set forth in Section 7.1 or Section 7.3,
except that (i) if such breach or failure to perform is capable of being cured by the Termination Date, the Company will not be entitled
to terminate this Agreement pursuant to this Section 8.1(g) prior to the delivery by the Company to Parent of written notice of such
breach, delivered at least 45 days prior to such termination (or such shorter period of time as remains prior to the Termination Date),
stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(g) and the basis for such termination,
it being understood that the Company will not be entitled to terminate this Agreement if such breach or failure to perform has been cured
prior to such termination and (ii) that the right to terminate this Agreement pursuant to this Section 8.1(g) will not be available
to the Company if it is then in breach of any provision of this Agreement or has failed to perform or comply with, or there is any inaccuracy
of, any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, failure to perform or inaccuracy
would give rise to the failure of the conditions set forth in Section 7.2(a) or Section 7.2(b); or
(h)
by the Company, at any time prior to receiving the Requisite Stockholder Approval if (i) the Company has received a Superior
Proposal; (ii) the Company Board (or a committee thereof), upon the recommendation of the Special Committee, has authorized the Company
to enter into a definitive Alternative Acquisition Agreement to consummate the Acquisition Transaction contemplated by that Superior Proposal;
(iii) and the Company has complied in all material respects with Section 5.3 with respect to such Superior Proposal; and (iv) concurrently
with such termination the Company pays the Company Termination Fee due in accordance with Section 8.3(b).
8.2
Manner and Notice of Termination; Effect of Termination.
(a)
Manner of Termination. The Party terminating this Agreement pursuant to Section 8.1 (other than pursuant to Section 8.1(a))
must deliver prompt written notice thereof to the other Parties setting
forth in
reasonable detail the provision of Section 8.1 pursuant to which this Agreement is being terminated and the facts and circumstances
forming the basis for such termination pursuant to such provision.
(b)
Effect of Termination. Any proper and valid termination of this Agreement pursuant to Section 8.1 will be effective
immediately upon the delivery of written notice by the terminating Party to the other Parties. In the event of the termination of this
Agreement pursuant to Section 8.1, this Agreement will be of no further force or effect without liability of any Party (or any partner,
member, manager, stockholder, director, officer, employee, Affiliate, agent or other representative of such Party) to the other Parties,
as applicable, except that the Confidentiality Agreement, Section 6.5(e), Section 6.5(f), Section 6.14, this Section 8.2, Section 8.3
and Article IX will each survive the termination of this Agreement in accordance with their respective terms. Notwithstanding the
foregoing, nothing in this Agreement will relieve any Party from any liability for any Willful and Material breach of this Agreement.
In addition to the foregoing, no termination of this Agreement will affect the rights or obligations of any Party pursuant to the Confidentiality
Agreement, which rights, obligations and agreements will survive the termination of this Agreement in accordance with their respective
terms.
8.3
Fees and Expenses.
(a)
General. Except as set forth in this Section 8.3 or as otherwise expressly provided herein, all fees and expenses incurred
in connection with this Agreement and the Merger will be paid by the Party incurring such fees and expenses whether or not the Merger
is consummated. For the avoidance of doubt, Parent or the Surviving Corporation will be responsible for all fees and expenses of the Payment
Agent.
(b)
Company Payments.
(i)
If (A) this Agreement is validly terminated pursuant to Section 8.1(d) or Section 8.1(e), (B) at the time of such termination,
the Company is not then able to terminate this Agreement pursuant to Section 8.1(b), and the conditions set forth in Section 7.3(a)
and Section 7.3(b) would be satisfied if the date of such termination was the Closing Date; (C) following the execution and
delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.1(d) or Section 8.1(e), as applicable,
an Acquisition Proposal for an Acquisition Transaction has been publicly announced or publicly disclosed and not withdrawn or otherwise
abandoned; and (D) within twelve (12) months following the termination of this Agreement pursuant to Section 8.1(d) or Section
8.1(e), as applicable, either such Acquisition Transaction is consummated or the Company enters into a definitive agreement providing
for the consummation of such Acquisition Transaction which is ultimately consummated, then the Company will concurrently with the consummation
of such Acquisition Transaction pay or cause to be paid to Parent (or as directed by Parent) an amount equal to $19,000,000 (the “Company
Termination Fee”). For purposes of this Section 8.3(b)(i), all references to “15%” in the definition of “Acquisition
Transaction” will be deemed to be references to “50%”.
(ii)
If this Agreement is validly terminated pursuant to Section 8.1(f), then the Company must promptly (and in any event within
two Business Days) following such termination pay or cause to be paid to Parent (or as directed by Parent) the Company Termination Fee.
(iii)
If this Agreement is validly terminated pursuant to Section 8.1(h), then the Company must prior to or concurrently with such
termination pay or cause to be paid to Parent (or as directed by Parent) the Company Termination Fee; provided, that if (A) such
termination occurs prior to the No-Shop Period Start Date and (B) the Company has entered into a definitive Alternative Acquisition Agreement
to consummate an Acquisition Transaction in connection with such termination, then the “Company Termination Fee” shall mean
an amount equal to $9,500,000.
(c)
Single Payment Only. The Parties acknowledge and agree that in no event will the Company be required to pay more than one
termination fee, collectively, or be required to pay the Company Termination Fee on more than one occasion, whether or not the Company
Termination Fee may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence
of different events.
(d)
Payments; Default. The Parties acknowledge that the agreements contained in this Section 8.3 are an integral part of
this Agreement and the Merger, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the
Company fails to promptly pay any amount due pursuant to Section 8.3(b) and, in order to obtain such payment, Parent commences a
Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any portion thereof,
the Company will pay to Parent (or as directed by Parent) its reasonable and documented out-of-pocket costs and expenses (including reasonable
and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof
at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or
portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate
that is the maximum permitted by applicable law. All payments under this Section 8.3 shall be made by the Company to Parent (or as directed
by Parent) by wire transfer of immediately available funds to an account designated by Parent in writing to the Company.
(e)
Acknowledgement Regarding Specific Performance. Notwithstanding the availability of monetary damages, it is agreed that
the Buyer Parties and the Company will be entitled to an injunction, specific performance or other equitable relief as provided in Section 9.8(b),
except that, although the Buyer Parties and the Company, in their respective sole discretion, may determine their choice of remedies hereunder,
including by pursuing specific performance in accordance with, but subject to the limitations of, Section 9.8(b), under no circumstances
will the Buyer Parties or the Company be permitted or entitled to receive both specific performance that results in the occurrence of
the Closing and any monetary damages, including, with respect to the Buyer Parties, the Company Termination Fee.
8.4
Amendment. Subject to applicable law and subject to the other provisions of this Agreement, this Agreement may be amended
by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Buyer Parties and the Company (pursuant
to authorized action by the Special Committee), except that (a) in the event that the Company has received the Requisite Stockholder Approval,
no amendment may be made to this Agreement that requires the approval of the Company Stockholders pursuant to the DGCL without such approval
and (b) the definition of the term “Unaffiliated Stockholder Approval” may not be amended, and the condition precedent set
forth in Section 7.1(a) regarding the receipt the Unaffiliated Stockholder Approval may not be amended.
8.5
Extension; Waiver. At any time and from time to time prior to the Effective Time, any Party may, to the extent legally allowed
and except as otherwise set forth herein, (a) extend the time for the performance of any of the obligations or other acts of the
other Parties, as applicable; (b) waive any inaccuracies in the representations and warranties made to such Party contained herein
or in any document delivered pursuant hereto; and (c) subject to the requirements of applicable law, waive compliance with any of
the agreements or conditions for the benefit of such Party contained herein; provided that the condition precedent set forth in
Section 7.1(a) regarding the receipt the Unaffiliated Stockholder Approval may not be waived. Any agreement on the part of a Party to
any such extension or waiver will be valid only if set forth in an instrument in writing signed by such Party. Any delay in exercising
any right pursuant to this Agreement will not constitute a waiver of such right.
8.6
Special Committee Approval. Notwithstanding anything to the contrary herein, prior to the Effective Time, no amendment
or waiver of any provision of this Agreement and no action shall be taken by or on behalf of the Company under or with respect to this
Agreement without first obtaining the approval of the Special Committee.
Article IX
GENERAL PROVISIONS
9.1
Survival of Representations, Warranties and Covenants. The representations, warranties and covenants of the Company and
the Buyer Parties contained in this Agreement will terminate at the Closing, except that any covenants that by their terms survive the
Closing will survive the Closing in accordance with their respective terms.
9.2
Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered
and received hereunder (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage
prepaid; (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight
courier service; or (iii) immediately upon delivery by hand or by email transmission, in each case to the intended recipient as set
forth below:
(a)
if to the Buyer Parties to:
Restaurant Brands International Inc. |
|
130 King Street West, Suite 300 |
|
Toronto, Ontario |
|
Canada, M5X 1E1 |
|
Attention: |
Jill Granat, General Counsel |
|
Email: |
|
|
|
|
|
with a copy (which will not constitute notice) to: |
|
|
|
Paul, Weiss, Rifkind, Wharton & Garrison LLP |
|
1285 Avenue of the Americas |
|
New York, New York 10019 |
|
Attention: |
Scott A. Barshay |
|
|
Laura C. Turano |
|
Email: |
sbarshay@paulweiss.com |
|
|
lturano@paulweiss.com |
|
(b)
if to the Company (prior to the Effective Time) to:
Carrols Restaurant Group, Inc. |
|
968 James Street |
|
Syracuse, NY 13203 |
|
Attention: |
Jared Landaw, General Counsel |
|
Email: |
|
|
|
|
|
with a copy (which will not constitute notice) to: |
Milbank LLP |
|
55 Hudson Yards |
|
New York, NY 10001-2163 |
|
Attention: |
Derek Winokur |
|
|
Iliana Ongun |
|
Email: |
dwinokur@milbank.com |
|
|
IOngun@milbank.com |
|
Any notice received by
email at the addressee’s email address or otherwise at the addressee’s location on any Business Day after 5:00 p.m., addressee’s
local time, or on any day that is not a Business Day will be deemed to have been received at 9:00 a.m., addressee’s local time,
on the next Business Day. From time to time, any Party may provide notice to the other Parties of a change in its address or email address
through a notice given in accordance with this Section 9.2, except that notice of any change to the address, email address or any
of the other details specified in or pursuant to this Section 9.2 will not be deemed to have been received until, and will be deemed
to have been received upon, the later of the date (A) specified in such notice; or (B) that is five Business Days after such
notice would otherwise be deemed to have been received pursuant to this Section 9.2.
9.3
Assignment. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of the other Parties, except that (a) the Buyer Parties will have the right to assign all or any portion of
their respective rights and obligations pursuant to this Agreement, including by Parent transferring its interests in Merger Sub, (i) in
connection with a merger or consolidation involving the Buyer Parties or other disposition of all or substantially all of the assets of
the Buyer Parties or the Surviving Corporation; or (ii) to any of their respective Affiliates; and (b) the Buyer Parties will
have the right to assign all or any portion of their respective rights and obligations pursuant to this Agreement to the lenders party
to Parent’s credit facilities from time to time (including for purposes of creating a security interest herein or otherwise assign
as collateral in respect of obtaining financing to consummate the transactions contemplated by this Agreement), it being understood that,
in each case, such assignment will not impede or delay the consummation of the Merger or otherwise materially impede the rights of the
holders of shares of Company Capital Stock and Company Equity Awards pursuant to this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns. No
assignment by any Party will relieve such Party of any of its obligations hereunder.
9.4
Confidentiality. The Buyer Parties and the Company hereby acknowledge that Parent and the Company have executed that certain
confidentiality agreement dated as of December 18, 2023 (the “Confidentiality Agreement”), that will continue in full
force and effect in accordance with its terms. Each of the Buyer Parties and their respective Representatives will hold and treat all
documents and information concerning the Company Group furnished or made available to the Buyer Parties or their respective Representatives
in connection with the Merger in accordance with the Confidentiality Agreement. By executing this Agreement, each of the Buyer Parties
agree to be bound by, and to cause their Representatives to be bound by, the terms and conditions of the Confidentiality Agreement as
if they were parties thereto.
9.5
Entire Agreement. This Agreement and the documents and instruments and other agreements among the Parties as contemplated
by or referred to herein, including the Confidentiality Agreement, the Company Disclosure Letter and the Parent Disclosure Letter, constitute
the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the Parties with respect to the subject matter hereof. Notwithstanding anything to the contrary in this Agreement,
the Confidentiality Agreement will (a) not be superseded; (b) survive any termination of this Agreement; and (c) continue
in full force and effect until the earlier to occur of the Effective Time and the date
on which
the Confidentiality Agreement expires in accordance with its terms or is validly terminated by the parties thereto.
9.6
Third Party Beneficiaries. Except as set forth in Section 6.9 and this Section 9.6, the Parties agree that their
respective representations, warranties and covenants set forth in this Agreement are solely for the benefit of the other Parties in accordance
with and subject to the terms of this Agreement. This Agreement is not intended to, and will not, confer upon any other Person any rights
or remedies hereunder, except (a) as set forth in or contemplated by Section 6.9; (b) if a court of competent jurisdiction
has declined to grant specific performance and has instead granted an award of damages, then the Company may enforce such award and seek
additional damages on behalf of the holders of shares of Company Common Stock and Company Equity Awards (which the Buyer Parties acknowledge
and agree may include damages based on a decrease in share value or lost premium); (c) if any of the Buyer Parties wrongfully terminate
or willfully breach this Agreement, then, following the termination of this Agreement, the Company may seek damages and other relief (including
equitable relief) on behalf of the holders of shares of Company Common Stock and Company Equity Awards (which the Buyer Parties acknowledge
and agree may include damages based on a decrease in share value or lost premium); and (d) from and after the Closing, the rights of the
holders of shares of Company Common Stock and Company Equity Awards, to receive the consideration set forth in Article II. The rights
granted pursuant to clause (c) of the second sentence of this Section 9.6 will only be enforceable on behalf of the holders
of shares of Company Common Stock and Company Equity Awards by the Company, in its sole and absolute discretion, as agent for such holders,
and it is understood and agreed that any and all interests in such claims will attach to such shares of the Company Common Stock and Company
Equity Awards, and subsequently transfer therewith and, consequently, any damages, settlements or other amounts recovered or received
by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith and) may, in the Company’s
sole and absolute discretion, be (A) distributed, in whole or in part, by the Company to such holders as of any date determined by
the Company; or (B) retained by the Company for the use and benefit of the Company Group in any manner that the Company deems fit.
9.7
Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a
court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and
effect, and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent
of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
9.8
Remedies.
(a)
Remedies Cumulative. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will
be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law or equity upon such Party, and the exercise
by a Party of any one remedy will not preclude the exercise of any other remedy. Although the Company may pursue both a grant of specific
performance and monetary damages, under no circumstances will the Company be permitted or entitled to receive both a grant of specific
performance that results in the occurrence of the Closing and monetary damages (including any monetary damages in lieu of specific performance).
(b)
Specific Performance.
(i)
The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would
occur in the event that the Parties do not perform the provisions of this Agreement (including any Party failing to take such actions
as are required of it hereunder in
order to
consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree
that, (A) the Parties will be entitled, in addition to any other remedy to which they are entitled at law or in equity, to an injunction,
specific performance and other equitable relief to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically
the terms and provisions hereof; and (B) the right of specific enforcement is an integral part of this Agreement and the Merger
and without that right, neither the Company nor the Buyer Parties would have entered into this Agreement. It is explicitly agreed that
the Company shall have the right to an injunction, specific performance or other equitable remedies in connection with enforcing the
Buyer Parties’ obligations to consummate the Merger.
(ii)
The Parties agree not to raise any objections to (A) the granting of an injunction, specific performance or other equitable
relief to prevent or restrain breaches or threatened breaches of this Agreement by the Company, on the one hand, or Parent, on the other
hand; and (B) the specific performance of the terms and provisions of this Agreement to prevent breaches or threatened breaches of,
or to enforce compliance with, the covenants, obligations and agreements of the Buyer Parties pursuant to this Agreement. Each of the
Parties hereto agrees that it will not oppose the granting of an injunction, specific performance or any other equitable relief on the
basis that any other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any
reason at law or in equity. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement will not be required to provide any bond or other security in connection with such injunction
or enforcement, and each Party irrevocably waives any right that it may have to require the obtaining, furnishing or posting of any such
bond or other security.
9.9
Governing Law. This Agreement shall be governed by and interpreted and construed in accordance with the laws of the State
of Delaware. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement, whether sounding in
contract, tort, or statute, shall be governed by the internal laws of the State of Delaware, including its statutes of limitations, without
giving effect to any conflict-of-laws or other rules that would result in the application of the laws or statutes of limitations of a
different jurisdiction.
9.10
Consent to Jurisdiction. Each of the Parties (i) irrevocably consents to the service of the summons and complaint
and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal Proceeding relating to
the Merger, for and on behalf of itself or any of its properties or assets, in accordance with Section 9.2 or in such other manner
as may be permitted by applicable law, and nothing in this Section 9.10 will affect the right of any Party to serve legal process
in any other manner permitted by applicable law; (ii) irrevocably and unconditionally consents and submits itself and its properties
and assets in any Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state
appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction
over a particular matter, any federal court within the State of Delaware (and any appellate court therefrom) or, if any federal court
within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State of Delaware (and
any appellate court therefrom)) (the “Chosen Courts”) in the event that any dispute or controversy arises out of this
Agreement or the transactions contemplated hereby; (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court; (iv) agrees that any Legal Proceeding arising in connection with this Agreement
or the transactions contemplated hereby will be brought, tried and determined only in the Chosen Courts; (v) waives any objection
that it may now or hereafter have to the venue of any such Legal Proceeding in the Chosen Courts or that such Legal Proceeding was brought
in an inconvenient court and agrees not to plead or claim the same; and (vi) agrees that it will not bring any Legal Proceeding relating
to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts. Each of the Buyer Parties and the
Company agrees that a final judgment in any Legal Proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by applicable law.
9.11
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT
IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE)
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MERGER, OR ANY TRANSACTION CONEMPLATED HEREBY (INCLUDING ANY
FINANCING OBTAINED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT). EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) 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; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER;
(iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
9.12
Company Disclosure Letter References. The Parties agree that the disclosure set forth in any particular section or subsection
of the Company Disclosure Letter will be deemed to be an exception to (or, as applicable, a disclosure for purposes of) (a) the representations
and warranties (or covenants, as applicable) of the Company that are set forth in the corresponding Section or subsection of this Agreement;
and (b) any other representations and warranties (or covenants, as applicable) of the Company that are set forth in this Agreement,
but in the case of this clause (b) only if the relevance of that disclosure as an exception to (or a disclosure for purposes of)
such other representations and warranties (or covenants, as applicable) is reasonably apparent on the face of such disclosure.
9.13
Counterparts. This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be
considered one and the same agreement and will become effective when one
or more
counterparts have been signed (including by electronic signature) by each of the Parties and delivered to the other Parties, it being
understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif,
..jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”), will be treated in all
manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. No Party may raise the use of an Electronic Delivery to deliver a signature, or
the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as
a defense to the formation of a contract, and each Party forever waives any such defense, except to the extent such defense relates to
lack of authenticity.
9.14
No Limitation. It is the intention of the Parties that, to the extent possible, unless provisions are mutually exclusive
and effect cannot be given to both or all such provisions, the representations, warranties, covenants and closing conditions in this Agreement
will be construed to be cumulative and that each representation, warranty, covenant and closing condition in this Agreement will be given
full, separate and independent effect and nothing set forth in any provision herein will in any way be deemed to limit the scope, applicability
or effect of any other provision hereof.
9.15
Non-Recourse. Each of the Company, its Subsidiaries, and the Affiliates, shareholders and representatives of the foregoing
acknowledge and agree that (i) no financing institution providing Debt Financing (“Debt Financing Sources”) shall have
any liability or obligations to the Company, its Subsidiaries or the Affiliates or representatives of the foregoing arising out of or
relating to (A) this Agreement or any other agreement referenced herein or the transactions contemplated hereunder (including any Debt
Financing), (B) the negotiation, execution or performance this Agreement or any other agreement referenced herein (including any representation
or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (C) any breach or violation
of this Agreement or any other agreement referenced herein and (D) any failure of the transactions contemplated hereunder or any other
agreement referenced herein (including any agreement in respect of any Debt Financing); (ii) no recourse under this Agreement or any other
agreement referenced herein or in connection with any transactions contemplated hereby (including any Debt Financing) shall be sought
or had against any Debt Financing Sources for any claims, causes of action, obligations or liabilities arising under, out of, in connection
with or related to the items in the clauses (A) through (D) of the immediately preceding clause (i), it being expressly agreed and acknowledged
that no personal liability or losses whatsoever shall attach to, be imposed on or otherwise be incurred by any of the aforementioned,
as such, arising under, out of, in connection with or related to the items in clauses (A) through (D) of the immediately preceding clause
(i).
[Signature page follows.]
IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written
above.
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RESTAURANT BRANDS INTERNATIONAL INC. |
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By: |
/s/ Joshua Kobza |
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Name: Joshua Kobza |
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Title: Chief Executive Officer |
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BK CHESHIRE CORP |
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By: |
/s/ Thomas B. Curtis IV |
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Name: Thomas B. Curtis IV |
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Title: President |
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[Signature Page to Agreement and Plan of Merger]
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CARROLS RESTAURANT GROUP, INC. |
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By: |
/s/ Deborah M. Derby |
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Name: Deborah M. Derby |
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Title: President and Chief Executive Officer |
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[Signature Page to Agreement and Plan of Merger]
EXHIBIT
7.2
EXECUTION VERSION
VOTING AGREEMENT
This Voting Agreement (“Agreement”),
dated as of January 16, 2024, is by and among Restaurant Brands International Inc., a corporation existing under the laws of Canada (“Parent”)
and the persons listed on the attached Schedule A who are signatories to this Agreement (each, a “Stockholder”
and collectively, the “Stockholders”).
RECITALS
WHEREAS, concurrently herewith,
Carrols Restaurant Group, Inc., a Delaware corporation (the “Company”), Parent and BK Cheshire Corp., a Delaware corporation
and a subsidiary of Parent (“Merger Sub”), are entering into an Agreement and Plan of Merger (the “Merger
Agreement”);
WHEREAS, the Company has
informed Parent and each Stockholder that the Company Board has, prior to the execution and delivery of this Agreement, taken all actions
so that the restrictions applicable to business combinations contained in Section 203 of the General Corporation Law of the State of Delaware
and any other “takeover” Law are, and will be, inapplicable to the execution, delivery and performance of this Agreement and
the transactions contemplated hereby (the “203 Approval”);
WHEREAS, as of the date
of this Agreement, each Stockholder is the record or “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange
Act) of the number of shares of Company Common Stock set forth next to such Stockholder’s name on Schedule A hereto, being
all of the shares of the Company Common Stock owned of record or beneficially by such Stockholder as of the date of this Agreement (collectively
with respect to each Stockholder, the “Owned Shares” and, together with any additional Shares or other voting securities
of the Company of which such Stockholder acquires record or beneficial ownership after the date of this Agreement, including by purchase,
as a result of a stock dividend, stock split, recapitalization, combination, consolidation, reclassification, exchange or change of such
shares, or other similar transaction, or upon exercise or conversion of any securities (including any Company Options, Company RSUs, Company
PSUs, Company RSAs, Company PSAs or any other equity awards), such Stockholder’s “Covered Shares”);
WHEREAS, as a condition
and inducement to the willingness of Parent and Merger Sub to enter into the Merger Agreement and to proceed with the transactions contemplated
thereby, including the Merger, Parent and the Stockholders are entering into this Agreement; and WHEREAS, the Stockholders acknowledge
that each of Parent and Merger Sub is entering into the Merger Agreement in reliance on the representations, warranties, covenants and
other agreements of the Stockholders set forth in this Agreement and would not enter into the Merger Agreement if the Stockholders did
not enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration
of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1.
Certain Definitions. All capitalized terms that are used but not defined herein have the respective meanings ascribed to
them in the Merger Agreement. For all purposes of and under this Agreement, the following terms have the following respective meanings:
(a)
“Constructive Disposition” means, with respect to a security, a short sale with respect to such security, entering
into or acquiring a derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver
such security or entering into any other hedging or other derivative, swap, “put-call”, margin, securities lending or other
transaction that has or reasonably would be expected to have the effect of changing, limiting, arbitraging or reallocating the economic
benefits and risks of ownership of such security.
(b)
“Termination Date” means the earlier to occur of (i) the Effective Time, (ii) the termination of the Merger
Agreement in accordance with its terms, and (iii) the date on which any amendment to the Merger Agreement is effected, or any waiver of
the Company’s rights under the Merger Agreement is granted, in each case, without the Stockholders’ prior written consent,
that (A) diminishes the Per Share Price to be received by the stockholders of the Company, (B) changes the form in which the Per Share
Price is payable to the stockholders of the Company, (C) extends the Termination Date (as defined in the Merger Agreement) or (D) imposes
any additional conditions on the Stockholder’s right to receive the Per Share Price.
(c)
A person shall be deemed to have effected a “Transfer” of a security if such person, whether voluntarily or
involuntarily, directly or indirectly (i) offers, sells, leases, assigns, gifts, grants an option with respect to, transfers, exchanges,
tenders or disposes (by merger, by testamentary disposition, by operation of law or otherwise, including by way of Constructive Disposition)
of such security or any interest in such security, (ii) creates or permits to exist any pledge, lien, charge, mortgage, encumbrance, hypothecation
or security interest of any kind or nature whatsoever on such security, except, in the case of each item described in clause (ii), that
would not reasonably be expected to, individually or in the aggregate, materially prevent, delay or impair or otherwise adversely impact
the Stockholders’ ability to perform its obligations hereunder, (iii) deposits such security into a voting trust or enters into
a voting agreement or arrangement or grants any proxy, power of attorney or other authorization with respect thereto that is inconsistent
with this Agreement, or (iv) agrees or commits (whether or not in writing) to take any of the actions referred to in the foregoing clauses
(i) through (iii). For the avoidance of doubt, any direct or indirect transfer of equity or other interests in the Stockholder by its
equityholders shall not constitute a Transfer.
2.
Transfer Restrictions. From the date of this Agreement until the Termination Date, each Stockholder agrees not to Transfer
(or cause or permit the Transfer of) any of the Covered Shares, or enter into any agreement relating thereto, except with Parent’s
prior written consent; provided, however, that any Stockholder may Transfer any such Covered Shares to (a) any other Stockholder or any
Affiliate of any such Stockholder or (b) any beneficial owner of the Stockholder, in each case only if the transferee of such Covered
Shares evidences in writing reasonably satisfactory to Parent such transferee’s agreement to be bound by and subject to the terms
and provisions of this Agreement to the same effect as such transferring Stockholder. Any Transfer or attempted Transfer of any Covered
Shares in violation of this Section 2 shall be null and void and of no effect whatsoever. In furtherance and not in limitation
of the foregoing, from the date of this Agreement until the Termination Date, no Stockholder shall make any demands to
register any of its Covered Shares pursuant
to the terms of that certain Registration Rights and Stockholders’ Agreement, dated as of April 30, 2019, by and between the Company
and the persons listed on Schedule A attached thereto, as amended.
3.
Agreement to Vote.
(a)
From the date of this Agreement until the Termination Date, subject to the terms of this Agreement and the 203 Approval, at every
meeting of the stockholders of the Company (and at every adjournment or postponement thereof) to vote on any matter contemplated by this
Agreement or the Merger Agreement, each Stockholder shall vote, and shall cause or direct to be voted, all of such Stockholder’s
Covered Shares:
(i)
in favor of the adoption of the Merger Agreement and the Merger;
(ii)
in favor of the approval of any proposal to adjourn the meeting to a later date, if there are not sufficient affirmative votes
(in person or by proxy) to obtain the Stockholder Approval on the date on which such meeting is held and Parent proposes or requests such
postponement or adjournment in accordance with the Merger Agreement;
(iii)
against (A) any action or agreement that would reasonably be expected to result in a breach of any covenant, representation
or warranty or other obligation or agreement of the Company contained in the Merger Agreement or result in any condition set forth in
Article VII of the Merger Agreement not being satisfied prior to the Termination Date, (B) any Acquisition Proposal or (C) approval
of any other proposal, transaction, agreement or action that would reasonably be expected to prevent, materially delay or materially impede
the consummation of the Merger or any other transactions contemplated by the Merger Agreement; and
(iv)
in favor of any other matter or action necessary for the consummation of the transactions contemplated by the Merger Agreement.
(b)
From the date of this Agreement until the Termination Date, if requested by Parent, each Stockholder shall execute and deliver
to Parent a written consent with respect to the Covered Shares approving any matter referenced in sub-clause (i), (ii), or (iv) of Section
3(a) and against the approval of any matter referenced in sub-clause (iii) of Section 3(a). Unless requested by Parent to execute
and deliver a written consent in accordance with the first sentence of this Section 3(b), each Stockholder agrees not to execute
or deliver a written consent with respect to any matter referenced in sub-clause (i), (ii) or (iii) of Section 3(a).
(c)
Each Stockholder shall appear, in person or by proxy, at each meeting of the stockholders of the Company or adjournment or postponement
thereof (or otherwise cause its Covered Shares to be counted as present thereat) for purposes of calculating a quorum and to vote on any
matter contemplated by this Agreement. Each Stockholder shall vote all of its Covered Shares in accordance with this Section 3.
(d)
Notwithstanding anything in this Agreement to the contrary, each Stockholder shall remain free to vote (or execute proxies with
respect to) the Covered Shares with respect to any matter not covered by Section 3(a) in any manner the Stockholder deems appropriate.
(e)
Nothing in this Agreement, including this Section 3, shall limit or restrict any Stockholder, Affiliate or designee
of any Stockholder who serves as a member of the Company Board in acting in his or her capacity as a director of the Company and exercising
his or her fiduciary duties and responsibilities, it being understood that this Agreement applies to each Stockholder solely in its capacity
as a stockholder of the Company and does not apply to, and shall not limit or affect in any manner, any such Stockholder, Affiliate or
designee’s actions, judgments or decisions as a director of the Company.
4.
Termination of Sales Plans. Upon public disclosure of the material terms of the transactions contemplated hereby and by
the Merger Agreement, each Stockholder shall (a) terminate any trading plan established in accordance with Rule 10b5-1 under the Exchange
Act, in respect of Company Common Stock, to which such Stockholder is a party (any such plan, a “Sales Plan”), (b)
take all actions necessary to ensure the continued effectiveness of the termination of any Sales Plan and (c) not Transfer (or cause or
permit the Transfer of) Company Common Stock pursuant to any Sales Plan at any time upon or after the execution of this Agreement.
5.
Representations and Warranties of the Stockholders. Each Stockholder, solely with respect to such Stockholder and severally
and not jointly, hereby represents and warrants to Parent as follows:
(a)
Power; Organization; Binding Agreement. Such Stockholder has full power and authority (in the case of each Stockholder that
is not a natural person) or capacity (in the case of each Stockholder that is a natural person) to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions contemplated hereby. With respect to each Stockholder that is
not a natural person, (i) the execution, delivery and performance by such Stockholder of this Agreement, and the consummation by such
Stockholder of the transactions contemplated hereby, have been duly authorized by all necessary corporate, limited liability company,
limited liability partnership or similar equivalent action on the part of such Stockholder and (ii) such Stockholder is duly organized,
validly existing and in good standing under the applicable law of its jurisdiction of formation. This Agreement has been duly executed
and delivered by such Stockholder, and, assuming due authorization, execution and delivery by Parent, this Agreement is enforceable against
such Stockholder in accordance with its terms, except that such enforceability may be limited by Enforceability Limitations.
(b)
No Conflicts. None of the execution and delivery by such Stockholder of this Agreement, the performance by such Stockholder
of its obligations hereunder or the consummation by such Stockholder of the transactions contemplated hereby will (i) require any consent
or approval under, or result in a violation or breach of, any agreement to which such Stockholder is a party or by which such Stockholder
may be bound, including any voting agreement or voting trust, (ii) result in the creation of any pledge, lien, charge, mortgage, encumbrance
or security interest of any kind or nature whatsoever (other than Permitted Liens or those created by this Agreement) on any of the assets
or properties of such Stockholder, (iii) violate any applicable law or order or (iv) with respect to each Stockholder that is not a natural
person, violate the organizational documents of such Stockholder.
(c)
Ownership of Covered Shares. Such Stockholder is, as of the date hereof, the record or beneficial owner of such Stockholder’s
Covered Shares. All such Stockholder’s
Covered Shares are free and clear of any pledges,
liens, charges, mortgages, encumbrances or security interests of any kind or nature whatsoever (other than Permitted Liens or those created
by this Agreement) and no person has a right to acquire any of such securities. As of the date of this Agreement, other than the Owned
Shares, such Stockholder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii)
securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options
or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company.
(d)
Voting Power. Such Stockholder has the requisite voting power, power of disposition, power to issue instructions with respect
to the matters set forth herein, and power to agree to all of the matters set forth in this Agreement necessary to take all actions required
under this Agreement, in each case with respect to all of the securities subject to this Agreement owned by such Stockholder, with no
limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and those arising under the
terms of this Agreement.
(e)
Reliance by Parent and Merger Sub. Such Stockholder understands and acknowledges that each of Parent and Merger Sub is entering
into the Merger Agreement in reliance on such Stockholder’s execution and delivery of this Agreement.
(f)
Consents and Approvals. The execution and delivery of this Agreement by such Stockholder does not, and the performance by
such Stockholder of its obligations under this Agreement and the consummation of the transactions contemplated hereby will not, require
such Stockholder to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental
Authority, except in each case for filings with the SEC or where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings and notifications, would not, either individually or in the aggregate, prevent or delay the performance by such
Stockholder of any of its obligations hereunder.
(g)
No Inconsistent Agreements. Except as contemplated by this Agreement, such Stockholder (i) has not entered into any voting
agreement or voting trust with respect to any of its Covered Shares and (ii) has not granted a proxy or power of attorney or entered into
any other arrangement with respect to any of its Covered Shares, in each case, that is inconsistent with such Stockholder’s obligations
pursuant to this Agreement.
(h)
Absence of Litigation. As of the date hereof, there is no action, suit, investigation or proceeding pending against or,
to the knowledge of the applicable Stockholder, threatened against or otherwise affecting, such Stockholder or any of its or his or her
properties or assets (including the Covered Shares) that would reasonably be expected to materially impair or materially delay the ability
of such Stockholder to perform its or his or her obligations hereunder.
6.
Representations and Warranties of Parent.
(a)
The execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the transactions contemplated
hereby are within the corporate powers of Parent and have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms, excepts as such enforceability may be limited by Enforceability Limitations.
(b)
Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, the Stockholder has not
made, and is not making, any representations or warranties to Parent with respect to the Stockholder, the Merger Agreement or any other
matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations expressly
set forth in this Agreement).
7.
Certain Restrictions.
(a)
From the date of this Agreement until the Termination Date, each Stockholder hereby agrees that such Stockholder shall not, shall
cause its Subsidiaries (if any) and its and their respective directors, officers and employees not to, and shall not instruct, authorize
or knowingly permit any of its other Representatives to, directly or indirectly: (i) solicit, initiate, propose or induce the making,
submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or could reasonably
be expected to lead to, an Acquisition Proposal, (ii) furnish to any Person (other than to Parent or any designees or Representatives
of Parent) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets,
books, records or other non-public information, or to any personnel, of the Company Group (other than Parent or any designees or Representatives
of Parent), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate
or assist, any proposal or inquiry that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or any inquiries
or the making of any proposal that could reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in discussions
or negotiations with any Person with respect to an Acquisition Proposal, (iv) approve, endorse or recommend any proposal that constitutes,
or could reasonably be expected to lead to, an Acquisition Proposal, or (v) enter into any agreement with respect to any Acquisition
Proposal; provided, that this Section 7(a) shall not restrict a Stockholder from taking any action or doing anything that
the Company is permitted to do in accordance with the terms of Section 5.3 of the Merger Agreement.
(b)
Each Stockholder hereby agrees to notify Parent promptly (and, in any event, within 24 hours) of any inquiries, offers or proposals
that constitute an Acquisition Proposal or any non-public information is requested from, or any discussions or negotiations are sought
to be initiated or continued with, the Stockholder or any of its Representatives with respect to an Acquisition Proposal. Such notice
must include (i) the identity of the Person or “group” of Persons making such offers or proposals (unless, in each case,
such disclosure is prohibited pursuant to the terms of any confidentiality agreement with such Person or “group” of Persons
that is in effect on the date of this Agreement) and (ii) a summary of the material terms and conditions of such offers or proposals.
Thereafter, the Stockholder must keep Parent reasonably informed, on a prompt basis (and, in any event, within 24 hours) of any modification
of the terms of any inquiry, offer or proposal (including any amendments thereto) and any changes and developments in the status of any
discussions or negotiations. No Stockholder shall, directly or indirectly, take any action that would make any of its representations
or warranties contained herein untrue or incorrect in any respect.
(c)
From the date of this Agreement until the Termination Date, in the event that any Stockholder acquires record or beneficial ownership
of, or the power to vote or direct the voting of, any additional Shares or other voting interests with respect to the Company, such Shares
or voting interests shall, without further action of the parties, be deemed Covered Shares and subject to the provisions of this Agreement,
the number of Shares held by such Stockholders shall be deemed amended accordingly, and such Shares or voting interests shall automatically
become subject to the terms of this Agreement. Each Stockholder shall notify the Company of any such event.
(d)
From the date of this Agreement until the Termination Date, no Stockholder shall enter into any voting agreement or voting trust
with respect to any of its Covered Shares or grant a proxy or power of attorney with respect to any of its Covered Shares, in either case,
that is inconsistent with such Stockholder’s obligations pursuant to this Agreement.
(e)
Each Stockholder hereby agrees not to commence or voluntarily participate in, and to take all actions necessary to opt out of any
class in any class action with respect to, any claim, derivative or otherwise, against Parent, the Company, the Merger Sub or any of their
respective successors (i) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement
or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Merger) or (ii) alleging a breach of any
fiduciary duty of the Company’s Board in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby
or hereby; provided, that the foregoing shall not limit any actions taken by the Stockholder in response to any claims commenced
against the Stockholder or its Representatives; provided, further that this Section 7(e) shall not be deemed a waiver
of any rights of the Stockholder or its Affiliates for any breach of (a) this Agreement, (b) the Merger Agreement or (c) any other Contract
by and between such Stockholder or any of its Affiliates, on the one hand, and the Company or its Subsidiaries or Affiliates, on the other
hand.
(f)
Each Stockholder shall permit Parent to publish and disclose in all documents and schedules filed with the SEC, and any press release
or other disclosure document that Parent determines to be necessary or desirable in connection with the Merger Agreement, such Stockholder’s
identity and ownership of Covered Shares and the nature of such Stockholder’s commitments, arrangements and understandings under
this Agreement.
8.
Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger
that such Stockholder may have under applicable law.
9.
Stop Transfer Instructions. At all times commencing with the execution and delivery of this Agreement and continuing until
the Termination Date, in furtherance of this Agreement, each Stockholder hereby authorizes the Company or its counsel to impose stop orders
to prevent the Transfer of any of the Covered Shares in violation of this Agreement.
10.
Termination. This Agreement and all rights and obligations of the parties hereunder and thereunder, shall automatically
terminate without further action and shall have no further force or effect as of the Termination Date; provided, that this Section
10 and Section 11 shall survive the termination of this Agreement. Notwithstanding the foregoing, nothing set forth
in this Section 10 or elsewhere in this
Agreement relieves either party hereto from liability, or otherwise limits the liability of either party hereto, for any willful and material
breach of this Agreement that occurred prior to such termination. For the avoidance of doubt, this Agreement shall not terminate upon
a Company Board Recommendation Change unless the Merger Agreement is terminated in accordance
with its terms.
11.
Miscellaneous.
(a)
Severability. If any provision of this Agreement or the application of any such provision to any person or circumstance
shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of any other provision hereof, and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(b)
Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole
or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties and any purported
assignment in violation hereof shall be null and void ab initio, except that Parent may assign, in its sole discretion, any or
all of its rights, interests and obligations under this Agreement to any affiliate of Parent, but no such assignment shall relieve Parent
of its obligations under this Agreement if such assignee does not perform such obligations. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by, the parties hereto and their respective successors and assigns.
(c)
Amendment and Modification; Waiver. This Agreement may be amended or waived by any party hereto only if such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective. Any failure of any of the parties to comply with any obligation, covenant, agreement
or condition in this Agreement may be waived by any of the parties entitled to the benefit thereof only by a written instrument signed
by each such party granting such waiver. 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. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by applicable law or in equity.
(d)
Specific Performance. The parties agree that irreparable damage for which monetary damages, even if available, would not
be an adequate remedy would occur in the event that the parties do not perform the provisions of this Agreement in accordance with its
specified terms or otherwise breach such provisions. The parties acknowledge and agree that, (i) the parties will be entitled, in addition
to any other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief
to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, and (ii) the right of specific enforcement
is an integral part of this Agreement and the transactions contemplated hereby and without that right, neither the Stockholder nor Parent
would have entered into this Agreement or the Merger Agreement. It is explicitly agreed that Parent shall have the right to an injunction,
specific performance or other equitable remedies
in connection with enforcing each Stockholder’s obligations hereunder.
(e)
Non-Recourse. This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise
out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities
that are expressly identified as parties hereto and no former, current or future equity holders, controlling Persons, directors, officers,
employees, agents or Affiliates of any party hereto or any former, current or future stockholder, controlling Person, director, officer,
employee, general or limited partner, member, manager, agent or Affiliate of any of the foregoing (each, a “Non-Recourse Party”)
shall have any liability for any obligations or liabilities of the parties to this agreement or for any claim (whether in tort, contract
or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any representations made
or alleged to be made in connection herewith. Without limitation the rights of any party against the other parties hereto, in no event
shall any party or any of its Affiliates seek to enforce this Agreement against, make any claims for beach of this Agreement against,
or seek to recover monetary damages for breach of this Agreement from, any Non-Recourse Party.
(f)
Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered
and received hereunder (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage
prepaid, (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight
courier service or (iii) immediately upon delivery by hand or by email transmission, in each case to the intended recipient as set
forth below:
If to the Stockholders, to the address for notice set forth on Schedule A hereto, with a copy (which shall not constitute notice) to: |
|
Kirkland & Ellis LLP |
|
Three Brickell City Centre |
|
98 S.E. 7th Street, Suite 700 |
|
Miami, FL 33131 |
|
Attention: |
Matthew Arenson, P.C. |
|
Email: |
matthew.arenson@kirkland.com |
|
|
|
|
and |
|
|
|
Kirkland & Ellis LLP |
|
601 Lexington Avenue |
|
New York, NY 10022 |
|
Attention: |
Willard S. Boothby, P.C. |
|
Email: |
willard.boothby@kirkland.com |
|
|
|
|
if to Parent, to: |
|
|
|
Restaurant Brands International Inc. |
|
130 King Street West, Suite 300 |
|
Toronto, ON M5X 1E1 |
|
Attention: |
General Counsel |
|
Email: |
|
|
|
|
|
and with a copy (which shall not constitute notice) to: |
|
|
|
Paul, Weiss, Rifkind, Wharton & Garrison LLP |
|
1285 Avenue of the Americas |
|
New York, NY 10019 |
|
Email: |
sbarshay@paulweiss.com |
|
|
lturano@paulweiss.com |
|
Attention: |
Scott A. Barshay |
|
|
Laura C. Turano |
|
|
|
if to the Company, to: |
|
|
|
Carrols Restaurant Group, Inc. |
|
968 James Street |
|
Syracuse, NY 13203 |
|
Email: |
|
|
Attention: |
General Counsel |
|
|
|
|
with a copy (which shall not constitute
notice) to: |
|
|
|
Milbank LLP |
|
55 Hudson Yards |
|
New York, NY 10001-2163 |
|
Attention: |
Derek Winokur |
|
|
Iliana Ongun |
|
Email: |
dwinokur@milbank.com |
|
|
IOngun@milbank.com |
|
Any notice received by
email at the addressee’s email address or otherwise at the addressee’s location on any Business Day after 5:00 p.m., addressee’s
local time, or on any day that is not a Business Day will be deemed to have been received at 9:00 a.m., addressee’s local time,
on the next Business Day. From time to time, any party may provide notice to the other parties of a change in its address or email address
through a notice given in accordance with this Section 11(f), except that notice of any change to the address, email address or
any of the other details specified in or pursuant to this Section 11(f) will not be deemed to have been received until, and will
be deemed to have been received upon, the later of the date (A) specified in such notice; or (B) that is five Business Days
after such notice would otherwise be deemed to have been received pursuant to this Section 11(f).
(g)
No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership
or incidence of ownership of or with respect to the Covered Shares. All rights, ownership and economic benefits of and relating to the
Covered Shares shall remain vested in and belong to the Stockholder, and Parent shall have no authority to exercise any power or authority
to direct the Stockholder in the voting or disposition of any of the Covered Shares, except as otherwise provided herein.
(h)
No Third Party Beneficiaries. This Agreement is not intended to confer upon any person other than the parties hereto (and
their respective successors and permitted assigns) any rights (legal, equitable or otherwise) or remedies, whether as third-party
beneficiaries or otherwise.
(i)
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
(j)
Submission to Jurisdiction; Service of Process; Venue. Each of the parties (i) irrevocably consents to the service of the
summons and complaint and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal
Proceeding relating to this Agreement, for and on behalf of itself or any of its properties or assets, in accordance with Section 11(f)
or in such other manner as may be permitted by applicable law, and nothing in this Section 11(j) will affect the right of any party
to serve legal process in any other manner permitted by applicable law; (ii) irrevocably and unconditionally consents and submits itself
and its properties and assets in any Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware
and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to
accept jurisdiction over a particular matter, any federal court within the State of Delaware (and any appellate court therefrom) or, if
any federal court within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State
of Delaware (and any appellate court therefrom)) (the “Chosen Courts”) in the event that any dispute or controversy
arises out of this Agreement or the transactions contemplated hereby; (iii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court; (iv) agrees that any Legal Proceeding arising in connection with
this Agreement or the transactions contemplated hereby will be brought, tried and determined only in the Chosen Courts; (v) waives any
objection that it may now or hereafter have to the venue of any such Legal Proceeding in the Chosen Courts or that such Legal Proceeding
was brought in an inconvenient court and agrees not to plead or claim the same; and (vi) agrees that it will not bring any Legal Proceeding
relating to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts. Each of Parent and each
Stockholder agrees that a final judgment in any Legal Proceeding in the Chosen Courts will be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by applicable law.
(k)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LEGAL PROCEEDING
(WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT
OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
ACKNOWLEDGES AND AGREES THAT (i) 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; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 11(k).
(l)
Rules of Construction. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout
all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent
counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred
to in this Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the
parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal
decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no
application and is hereby expressly waived by each of the parties hereto.
(m)
Entire Agreement. This Agreement, together with any schedule hereto, the Merger Agreement and any exhibit and schedule thereto,
constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement.
(n)
Interpretation. Section 1.3 of the Merger Agreement shall apply to this Agreement, mutatis mutandis.
(o)
Expenses. Except as otherwise expressly provided in this Agreement or the Merger Agreement, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses.
12.
Counterparts. This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be
considered one and the same agreement and will become effective when one or more counterparts have been signed (including by electronic
signature) by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties need not sign
the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic
mail (any such delivery, an “Electronic Delivery”), will be treated in all manner
and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. No party hereto may raise the use of an Electronic Delivery to deliver a signature, or the
fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense
to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first written above.
|
RESTAURANT BRANDS INTERNATIONAL INC. |
|
|
|
|
|
/s/ Joshua Kobza |
|
|
Name: Joshua Kobza |
|
|
Title: Chief Executive Officer |
|
|
|
|
[Signature Page to Voting Agreement]
|
CAMBRIDGE FRANCHISE HOLDINGS, LLC |
|
|
|
|
|
/s/ Matthew Perelman |
|
|
Name: Matthew Perelman |
|
|
Title: Co-President |
|
|
|
|
|
ALEXANDER SLOANE |
|
|
|
|
|
/s/ Alexander Sloane |
|
|
|
|
|
MATTHEW PERELMAN |
|
|
|
|
|
/s/ Matthew Perelman |
|
|
|
|
[Signature Page to Voting Agreement]
Schedule A
Stockholder Name |
Owned Shares |
Address |
Cambridge Franchise Holdings, LLC |
10,442,310 |
853 Broadway, Suite 1605
New York, NY 10003 |
Matthew Perelman |
283,234 |
853 Broadway, Suite 1605
New York, NY 10003 |
Alexander Sloane |
152,284 |
853 Broadway, Suite 1605
New York, NY 10003 |
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