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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) June 20, 2017 (June 19, 2017)

Teladoc, Inc.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction
of incorporation)
  001-37477
(Commission
File Number)
  04-3705970
(IRS Employer
Identification No.)

2 Manhattanville Road, Suite 203, Purchase, New York, 10577
(Address of principal executive offices) (Zip Code)

(203) 635-2002
Registrant's telephone number, including area code

Not Applicable
(Former name or former address, if changed since last report.)

        Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ý

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

   


Item 1.01.    Entry into a Material Definitive Agreement.

        On June 19, 2017, Teladoc, Inc. (the "Company") and Barolo Acquisition Corp., a wholly owned subsidiary of the Company ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with Best Doctors Holdings, Inc. ("BDHI"), Shareholder Representative Services LLC, in its capacity as the Stockholder Representative thereunder, BBH Capital Partners IV, L.P. and BBH Capital Partners QP IV, L.P., pursuant to which the Company agreed to acquire BDHI.

        The acquisition of BDHI will be accomplished by means of the merger (the "Merger") of Merger Sub with and into BDHI, with BDHI continuing as the surviving corporation (the "Surviving Corporation") and a direct, wholly owned subsidiary of the Company. As a result of the Merger, former holders of capital stock of BDHI and options to purchase capital stock of BDHI (collectively, the "Equityholders") will receive a pro rata share of (a) $375 million in cash, with such cash amount being subject to a customary adjustment based on, among other things, the amount of cash, debt and working capital in the business at the closing date and (b) a number of shares of common stock of the Company (the "Shares") determined by dividing $65 million by the average volume-weighted trading price on the New York Stock Exchange for one share of the common stock of the Company for the five full trading days ending on and including the full trading day immediately prior to the completion of the transaction.

        The Merger Agreement contains customary representations, warranties and covenants by BDHI, the Company and Merger Sub. The parties have agreed to indemnify each other for breaches of representations, warranties and covenants. The completion of the transaction is subject to the expiration or termination of the waiting period applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and certain other customary closing conditions. The transaction does not require approval of the Company's stockholders and is not subject to any financing contingency.

        The Merger Agreement may be terminated under certain circumstances, including by either party if the transaction has not been completed by August 12, 2017. The Company currently anticipates that the transaction will be completed in July 2017.

        The description of the Merger Agreement set forth above does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto. The Merger Agreement and the above description have been included to provide investors with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about the Company or any other parties to the Merger Agreement or their respective affiliates or equityholders. The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of the Merger Agreement and as of the specific dates, were solely for the benefit of the parties thereto, may have been used for purposes of allocating risk between each party rather than establishing matters of fact, may be subject to a contractual standard of materiality different from that generally applicable to investors and may be subject to qualifications or limitations agreed upon by the parties in connection with the negotiated terms, including being qualified by schedules and other disclosures made by each party. Accordingly, investors should not rely on the representations, warranties and covenants in the Merger Agreement as statements of factual information.

        This filing does not constitute an offer to sell or the solicitation of an offer to buy any securities. The Shares will only be issued in a private placement pursuant to the terms of the Merger Agreement.

1


Item 3.02.    Unregistered Sales of Equity Securities.

        Pursuant to the Merger Agreement, the Company has agreed, subject to the terms and conditions of the Merger Agreement, to issue the Shares at the closing of the transaction. The issuance of the Shares at the closing of the transaction is expected to be exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) and Rule 506 promulgated under Regulation D under the Securities Act.

Item 7.01.    Regulation FD Disclosure.

        The Company issued a press release on June 19, 2017 announcing the execution of the Merger Agreement. A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.1.

        Attached as Exhibit 99.2 to this Current Report on Form 8-K and incorporated herein by reference is a copy of a presentation to be used by the management team of the Company in a presentation to investors (the "Investor Presentation"). The Company intends to post the Investor Presentation in the "Investor Relations" section of its website at http://www.teladoc.com. The Company reserves the right to discontinue the availability of the Investor Presentation at any time.

        The information in this Item 7.01 and Exhibits 99.1 and 99.2 is furnished and shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, and such information shall not be deemed to be incorporated by reference into any of the Company's filings under the Securities Act or the Exchange Act.

Item 9.01.    Financial Statements and Exhibits.

(d)
Exhibits
Exhibit No.   Description
The following exhibit is filed as part of this report:

  2.1

 

Agreement and Plan of Merger, dated as of June 19, 2017, by and among Teladoc, Inc., Barolo Acquisition Corp., Best Doctors Holdings, Inc., Shareholder Representative Services LLC, as stockholder representative, BBH Capital Partners IV, L.P. and BBH Capital Partners QP IV, L.P.*

The following exhibits are furnished as part of this report:

99.1

 

Press Release issued by Teladoc, Inc., dated June 19, 2017

99.2

 

Investor Presentation, dated June 19, 2017

*
Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally to the U.S. Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request.

Cautionary Statement Regarding Forward-Looking Statements

        This Current Report on Form 8-K contains "forward-looking statements" within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995 concerning the Company, BDHI, the proposed acquisition of BDHI and other matters. Forward-looking statements can be identified by words such as: "anticipate," "intend," "plan," "believe," "project," "estimate," "expect," "may," "should," "will" and similar references to future periods. Examples of forward-looking statements include, among others, statements we make regarding the intended acquisition of BDHI,

2


future revenues, future earnings, future numbers of members or clients, litigation outcomes, regulatory developments, market developments, new products and growth strategies, and the effects of any of the foregoing on our future results of operations or financial conditions.

        Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of the control of the Company and BDHI. Our actual results and financial condition may differ materially from those indicated in the forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking statements include, among others, the following: (i) risks related to the acquisition of BDHI, including failure to obtain applicable regulatory approvals in a timely manner or at all, integration risks, exposure to international operations and failure to achieve the anticipated benefits of the acquisition; (ii) changes in laws and regulations applicable to our business model; (iii) changes in market conditions and receptivity to our services and offerings; (iv) results of litigation; (v) the loss of one or more key clients; and (vi) changes to our abilities to recruit and retain qualified providers into our network. For a detailed discussion of the risk factors that could affect our actual results, please refer to the risk factors identified in our SEC reports, including, but not limited to our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, as filed with the Securities and Exchange Commission.

        Any forward-looking statement made by us in this Current Report on Form 8-K is based only on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.

3



SIGNATURES

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

    TELADOC, INC.

Date: June 20, 2017

 

By:

 

/s/ ADAM C. VANDERVOORT

    Name:   Adam C. Vandervoort
    Title:   Chief Legal Officer and Secretary

4



EXHIBIT INDEX

Exhibit
No.
  Description
The following exhibit is filed as part of this report:

  2.1

 

Agreement and Plan of Merger, dated as of June 19, 2017, by and among Teladoc, Inc., Barolo Acquisition Corp., Best Doctors Holdings, Inc., Shareholder Representative Services LLC, as stockholder representative, BBH Capital Partners IV, L.P. and BBH Capital Partners QP IV, L.P.*


The following exhibits are furnished as part of this report:

99.1

 

Press Release issued by Teladoc, Inc., dated June 19, 2017

99.2

 

Investor Presentation, dated June 19, 2017

*
Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally to the U.S. Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request.

5




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Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

BEST DOCTORS HOLDINGS, INC.,

TELADOC,  INC.,

BAROLO ACQUISITION CORP.,

SHAREHOLDER REPRESENTATIVE SERVICES LLC,

as Stockholder Representative

BBH CAPITAL PARTNERS IV, L.P. ,

and

BBH CAPITAL PARTNERS QP IV, L.P.

Dated as of June 19, 2017



TABLE OF CONTENTS

 
   
  Page  

ARTICLE I. THE MERGER

    1  

1.1

 

The Merger

   
1
 

1.2

 

Effective Time

    2  

ARTICLE II. EFFECT ON CAPITAL STOCK

   
2
 

2.1

 

Conversion of Securities

   
2
 

2.2

 

Payment for Securities

    4  

2.3

 

Dissenting Shares

    6  

2.4

 

Treatment of Company Options. 

    7  

2.5

 

Treatment of Warrants

    8  

2.6

 

Estimated Cash; Parent Stock

    9  

2.7

 

Closing Consideration Schedule

    10  

2.8

 

Escrow

    11  

2.9

 

Post-Closing Adjustments to the Estimated Cash Amount

    13  

2.10

 

Withholding Rights

    14  

ARTICLE III. CLOSING

   
15
 

3.1

 

The Closing

   
15
 

3.2

 

Payments at Closing

    15  

ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

   
16
 

4.1

 

Organization of the Company Group

   
16
 

4.2

 

Capitalization

    16  

4.3

 

Authorization

    18  

4.4

 

No Violation

    19  

4.5

 

Consents and Approvals

    19  

4.6

 

Financial Statements

    19  

4.7

 

Liabilities

    20  

4.8

 

Absence of Changes

    20  

4.9

 

Tangible Assets

    20  

4.10

 

Contracts and Commitments

    20  

4.11

 

Permits

    21  

4.12

 

Litigation

    21  

4.13

 

Compliance with Law

    22  

4.14

 

Books and Records

    22  

4.15

 

Intellectual Property

    22  

4.16

 

Real Property

    26  

4.17

 

Labor Matters

    27  

4.18

 

Employee Benefit Plans

    27  

4.19

 

Affiliate Transactions

    29  

4.20

 

Insurance

    29  

4.21

 

Tax Matters

    30  

4.22

 

Compliance with Environmental Laws

    31  

4.23

 

Customers

    31  

4.24

 

No Brokers

    32  

i


 
   
  Page  

ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

    32  

5.1

 

Organization of Parent and Merger Sub

   
32
 

5.2

 

Capitalization

    32  

5.3

 

Parent Stock

    33  

5.4

 

Interim Operations of Merger Sub

    33  

5.5

 

Authorization

    33  

5.6

 

Consents and Approvals

    33  

5.7

 

No Conflict or Violation

    34  

5.8

 

Parent SEC Reports

    34  

5.9

 

Parent Financial Statements

    34  

5.10

 

Internal Control over Financial Reporting. 

    34  

5.11

 

Litigation

    34  

5.12

 

Compliance with Laws

    34  

5.13

 

Financing

    35  

5.14

 

No Material Adverse Effect

    35  

5.15

 

Intellectual Property

    35  

5.16

 

Tax

    37  

5.17

 

No Brokers

    37  

ARTICLE VI. COVENANTS

   
37
 

6.1

 

Conduct of Business by the Company

   
37
 

6.2

 

Access to Information. 

    39  

6.3

 

Consents; Filings

    39  

6.4

 

Company Written Consent; Stockholder Notice

    40  

6.5

 

Accredited Investor Certifications

    41  

6.6

 

Warrants

    41  

6.7

 

Option Letter of Transmittal

    41  

6.8

 

Tax Matters

    41  

6.9

 

Indemnification of Officers and Directors

    44  

6.10

 

Confidentiality; Publicity

    44  

6.11

 

Stockholder Confidentiality

    45  

6.12

 

Waiver and Release

    45  

6.13

 

Exclusivity

    46  

6.14

 

280G Cooperation

    46  

6.15

 

Benefits Plans

    46  

6.16

 

Payoff Letters

    47  

6.17

 

Financing

    47  

6.18

 

NYSE Listing

    50  

6.19

 

R&W Insurance

    50  

6.20

 

Continuation of Benefits. 

    50  

6.21

 

Notices of Certain Events

    51  

6.22

 

Further Assurances

    52  

6.23

 

Legal Representation. 

    52  

6.24

 

Earn Out. 

    52  

ARTICLE VII. INDEMNIFICATION; REMEDIES

   
53
 

7.1

 

Survival of Representations, Etc

   
53
 

7.2

 

Indemnification

    53  

7.3

 

Limitations on Indemnity. 

    54  

ii


 
   
  Page  

7.4

 

Direct Claims Indemnification Procedures

    55  

7.5

 

Defense of Third-Party Claims

    56  

7.6

 

Effect of Knowledge or Waiver of Condition

    57  

7.7

 

Escrow; Payment. 

    57  

7.8

 

No Contribution

    58  

7.9

 

Indemnification Sole Remedy

    58  

7.10

 

Tax Consequences of Payments

    58  

7.11

 

Losses Net of Insurance

    58  

ARTICLE VIII. CONDITIONS TO CLOSING

   
58
 

8.1

 

Conditions to the Obligations of Each Party

   
58
 

8.2

 

Conditions to Obligations of the Company

    59  

8.3

 

Conditions to Obligations of Parent and Merger Sub

    59  

ARTICLE IX. TERMINATION

   
60
 

9.1

 

Termination

   
60
 

9.2

 

Effect of Termination

    61  

ARTICLE X. MISCELLANEOUS

   
61
 

10.1

 

Defined Terms

   
61
 

10.2

 

Usage

    76  

10.3

 

Assignment

    76  

10.4

 

Governing Law

    77  

10.5

 

Consent to Jurisdiction

    77  

10.6

 

Waiver of Trial by Jury

    77  

10.7

 

Counterparts

    77  

10.8

 

Headings

    77  

10.9

 

Notices

    78  

10.10

 

Amendments

    79  

10.11

 

Severability

    79  

10.12

 

Entire Agreement

    80  

10.13

 

Construction

    80  

10.14

 

No Personal Liability

    80  

10.15

 

Fees, Costs and Expenses

    80  

10.16

 

Waivers

    80  

10.17

 

No Third-Party Beneficiaries

    80  

10.18

 

Appointment of the Stockholder Representative. 

    81  

10.19

 

Lender Limitations

    83  

10.20

 

Specific Enforcement

    83  

 

  Exhibit A   Form of Amended and Restated Certificate of Incorporation of the Surviving Corporation
  Exhibit B   Form of Amended and Restated Bylaws of the Surviving Corporation
  Exhibit C   Form of Certificate of Merger
  Exhibit D   Form of Stock Letter of Transmittal
  Exhibit E   Form of Escrow Agreement
  Exhibit F   Form of Company Written Consent
  Exhibit G   Form of Accredited Investor Questionnaire
  Exhibit H   Form of Option Letter of Transmittal
  Exhibit I   Working Capital Calculation
  Exhibit J   4.6 Information

iii



AGREEMENT AND PLAN OF MERGER

        This AGREEMENT AND PLAN OF MERGER (this " Agreement "), dated as of June 19, 2017, is by and among: (i) Teladoc, Inc., a Delaware corporation (" Parent "); (ii) Barolo Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (" Merger Sub "); (iii) Best Doctors Holdings, Inc., a Delaware corporation (the " Company "); (iv) Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Company Equityholders (the " Stockholder Representative "), and, for purposes of Section 2.5(b) and (c)  hereof, each of (v) BBH Capital Partners IV, L.P. (" BBH ") and (vi) BBH Capital Partners QP IV, L.P. (" BBH QP ").


RECITALS

        WHEREAS, each of Parent, Merger Sub and the Company desire to effect the acquisition of the Company by Parent through the merger of Merger Sub with and into the Company with the Company continuing as the surviving corporation of the merger (the " Merger ") upon the terms and subject to the conditions set forth in this Agreement and in accordance with the General Corporation Law of the State of Delaware (the " DGCL ");

        WHEREAS, the Board of Directors of the Company has (a) determined that it is in the best interests of the Company and the Stockholders, and declared it advisable, to enter into this Agreement, (b) approved the execution, delivery and performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby, and (c) resolved to recommend that the Stockholders adopt this Agreement and approve the Merger;

        WHEREAS, immediately following the execution and delivery of this Agreement, it is anticipated that certain Stockholders holding sufficient type and number of shares of Company Capital Stock to adopt this Agreement and approve the Merger in accordance with the DGCL and the Company's Organizational Documents will execute and deliver to the Company, and the Company shall thereafter deliver to Parent, the Company Written Consent;

        WHEREAS, the Board of Directors of Parent has (a) determined that it is in the best interests of Parent and its stockholders, and declared it advisable, to enter into this Agreement, and (b) approved the execution, delivery and performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby;

        WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and the other transactions contemplated by this Agreement; and

        WHEREAS, in connection with the transactions contemplated hereby, Parent intends to make inducement grants of options to purchase shares of Parent Stock to certain employees of the Company and its Subsidiaries.

        NOW THEREFORE, in consideration of the respective covenants and promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I.
THE MERGER

        1.1     The Merger.     


        1.2     Effective Time.     Contemporaneous with, or as promptly as practicable after the Closing, Merger Sub shall cause a certificate of merger in the form attached hereto as Exhibit C (the " Certificate of Merger "), to be filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings required under the DGCL. The Merger shall become effective at the time the Certificate of Merger shall have been duly filed with the Secretary of State of the State of Delaware, or such later date and time as is agreed upon by the parties and specified in the Certificate of Merger (such date and time hereinafter referred to as the " Effective Time ").


ARTICLE II.
EFFECT ON CAPITAL STOCK

        2.1     Conversion of Securities.     At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of any of the following securities:

2


3


        2.2     Payment for Securities.     

4


5


        2.3     Dissenting Shares.     

6


        2.4     Treatment of Company Options.     

7


        2.5     Treatment of Warrants .    

8


        2.6     Estimated Cash; Parent Stock .    

9


        2.7     Closing Consideration Schedule.     At or prior to the Closing, the Company shall deliver to Parent a schedule (the " Closing Consideration Schedule "), which schedule shall be certified as complete and correct by an officer of the Company and which shall accurately set forth:

10


        2.8     Escrows .    

11


12


        2.9     Post-Closing Adjustments to the Estimated Cash Amount .    

13


        2.10     Withholding Rights.     Merger Sub, Parent, the Surviving Corporation and the Paying Agent, as the case may be, shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement, such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code and the Treasury Regulations or under any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and timely paid over to the appropriate Governmental Authority by Merger Sub, Parent, the Surviving Corporation or the Paying Agent, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. Notwithstanding anything to the contrary, any compensatory payments for Tax purposes payable pursuant to or as contemplated by this Agreement shall be paid through the payroll system of Parent or its Subsidiary subject to applicable Tax withholding. Other than with respect to compensatory payments for Tax purposes or withholding arising from Section 3406 of the Code solely as a result of failure to provide either a Form W-9 or applicable Form W-8, (i) Parent shall notify the applicable Stockholder subject to withholding of any amounts that Merger Sub, Parent, the Surviving Corporation or the Paying Agent intend to withhold from any

14


payments hereunder and provide the Stockholder Representative with reasonable support for the basis on which such party intends to withhold under applicable Law, and (ii) the parties shall cooperate with each other, as and to the extent reasonably requested by the other party, to minimize or eliminate any such withholding as provided hereunder.


ARTICLE III.
CLOSING

        3.1     The Closing.     The closing of the Merger and the other transactions contemplated by this Agreement (the " Closing ") will take place at 9:00 a.m., Pacific Time, on the second (2 nd ) Business Day after satisfaction or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing), at the offices of Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071, unless another time, date or place is agreed to in writing by the parties hereto; provided , however , that without the prior written consent of Parent, in no event shall the Closing occur prior to July 19, 2017. The date on which the Closing occurs is referred to herein as the " Closing Date ".

        3.2     Payments at Closing.     At the Closing:

15



ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

        Except as otherwise set forth on the Disclosure Schedule, the Company hereby represents and warrants to Parent and Merger Sub as of the date hereof and as of the Closing Date as follows:

        4.1     Organization of the Company Group .    

        4.2     Capitalization.     

16


17


        4.3     Authorization.     

18


        4.4     No Violation.     Neither the execution and delivery of this Agreement and the other Ancillary Agreements to which the Company is a party, nor the consummation of the Merger or the other transactions contemplated hereby or thereby by the Company, does or will (a) violate, breach or be in conflict with any provisions of the Organizational Documents of the Company or any Company Subsidiary; (b) with or without the passage of time, the giving of notice or both, result in any right of termination, modification, acceleration, reduction or cancellation of any material right of the Company Group (including under any Contract to which any member of the Company Group is a party or any of its properties or assets is bound), result in any modification, increase or acceleration of any material Liability of the Company Group, result in the creation or imposition of any Encumbrance on assets of the Company Group, or violate, breach, result in a default under or be in conflict with any Contract to which any member of the Company Group is a party or any of its properties or assets is bound; or (c) violate any Law or any Order to which the Company Group is subject.

        4.5     Consents and Approvals.     Other than (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) the applicable requirements of the HSR Act, no Approval of any Governmental Authority or other Person is required to be made or obtained by the Company Group in connection with the execution, delivery and performance of this Agreement and the Ancillary Agreements to which the Company is a party or the consummation of the Merger or the other transactions contemplated hereby or thereby, except for such Approvals which would not be material to the Company and its Subsidiaries, taken as a whole.

        4.6     Financial Statements.     

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        4.7     Liabilities.     

        4.8     Absence of Changes.     Since the date of the Latest Balance Sheet, the business of the Company Group has been conducted in the ordinary course consistent with past practice and (a) there has not been any Company Material Adverse Effect and (b) the Company Group has not taken any action of the type described in Section 6.1 , which, had such action been taken following the date hereof without the Parent's prior approval, would have constituted a violation of Section 6.1 .

        4.9     Tangible Assets.     The Company Group has good and marketable title to, a valid leasehold interest in or a valid license to use all of the material tangible properties and assets used by it, located on its premises, or shown on the Latest Balance Sheet or acquired thereafter (the " Tangible Assets "), free and clear of all Encumbrances, other than Permitted Encumbrances. The Tangible Assets are all of the material tangible properties and assets reasonably necessary for the current operation of the business of the Company Group, are in good operating condition (normal wear and tear excepted) and are adequate in all material respects for use in the ordinary course of business.

        4.10     Contracts and Commitments.     

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        4.11     Permits.     The Company holds, and is in compliance with all terms and conditions of, all material Permits required to be held for the lawful conduct of its business as currently conducted. Section 4.11 of the Disclosure Schedule sets forth a complete list of such material Permits, including the issuing authority and the expiration date of each of them. All such material Permits are, and following the Closing will be, in full force and effect, and no event has occurred that would, with the passage of time, the giving of notice or both, constitute a default under any such material Permits. All applications for renewal of such material Permits have been timely filed. There is no pending action relating to, and to the Knowledge of the Company, there is no threatened, suspension, cancellation, or invalidation of any material Permits.

        4.12     Litigation.     

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        4.13     Compliance with Law; Code of Ethics.     

        4.14     Books and Records.     The minute books of each member of the Company Group contain records of all meetings, and actions taken by written consent of, the board of directors, and any committee thereof, of such member of the Company Group. At the Closing, the books and records of the Company Group will be in the possession of the Company Group.

        4.15     Intellectual Property.     

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        4.16     Real Property.     

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        4.17     Labor Matters.     

        4.18     Employee Benefit Plans.     

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        4.19     Affiliate Transactions.     No director, officer, employee, Affiliate (which for purposes of this Section 4.19 shall include any stockholder of the Company that owns more than 5% of the Company Capital Stock) or "associate" or members of any of their "immediate family" (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company Group (each of the foregoing, a " Related Person "), other than in its capacity as a director, officer or employee of the Company Group (a) has entered into any Material Contract involving any member of the Company Group that remains in effect, (b) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any property or right used by the Company Group, (c) is directly engaged, to the Knowledge of the Company, in any business that competes with the business of the Company Group, (d) has any outstanding Indebtedness owed to the Company Group or any other claim or right against the Company Group (other than rights to receive compensation for services performed as a director, officer or employee of the Company Group and other than rights to reimbursement for travel and other business expenses incurred in the ordinary course), or (e) otherwise has a business arrangement (other than services performed as a director, officer or employee of the Company Group) with the Company Group.

        4.20     Insurance.      Section 4.20 of the Disclosure Schedules sets forth a complete and correct list of all insurance policies currently in force with respect to the Company Group (the " Insurance Policies "), including all "occurrence based" liability policies, all errors and omissions policies and all production package policies. The Insurance Policies are in full force and effect and are valid, outstanding and enforceable. All premiums due thereon have been timely paid, all claims under the Insurance Policies have been timely made and the Company Group is in material compliance with the terms of the Insurance Policies. No insurance claims of more than $50,000 have been made in the past three (3) years by the Company Group. No pending claim under any Insurance Policy has been denied by the insurer thereunder and there are no material pending claims under any Insurance Policy. The Company Group has not been notified of any pending increase in the renewal or other premiums applicable to any of the Insurance Policies or that any of such Insurance Policies will not be renewed on substantially the same terms or at all.

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        4.21     Tax Matters.     Except as otherwise set forth in Section 4.21 of the Disclosure Schedule:

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        Notwithstanding any other provision of this Agreement, (i) nothing in this Agreement shall be construed as providing a representation or warranty with respect to the existence, amount, expiration date or limitations on (or availability of) any Tax attribute (including methods of accounting) of any member of the Company Group, and (ii) all representations herein shall be limited to Pre-Closing Tax Periods and no representation is provided with respect to other taxable periods.

        4.22     Compliance with Environmental Laws.     Each member of the Company Group is, and at all times has been, in compliance with, and has not been and is not in violation of or liable under any applicable Laws relating to environmental matters (" Environmental Laws "). There are no claims, notices, civil, criminal or administrative Actions, inquiries, common law claims, or proceedings pending or, to the Knowledge of the Company Group, threatened against the Company Group that allege the violation of any Environmental Law. The Company Group has not caused or contributed to a release of hazardous substances (as defined under applicable Environmental Law) including polychlorinated biphenyls, asbestos, lead paint or toxic mold in amounts or concentrations creating Liability under Environmental Law. The Company has furnished to Parent all reports or communications (in written or electronic form) in its possession or the possession of lenders, insurers, consultants and advisors relating to compliance in respect of, or Liability under, Environmental Law.

        4.23     Customers.     

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        4.24     No Brokers.     Except as set forth on Section 4.24 of the Disclosure Schedule, no member of the Company Group nor any of their respective officers, directors, employees, stockholders, representatives or Affiliates has employed or made any agreement with any broker, finder or similar agent or any Person which will result in the obligation of any member of the Company Group, Parent or any of their respective Affiliates to pay any finder's fee, brokerage fees or commission or similar payment in connection with the Merger or any of the other transactions contemplated by this Agreement or the Ancillary Agreements.


ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

        Except as disclosed in the Parent SEC Reports (other than risk factor and forward-looking statement disclosure in such SEC Reports), Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as of the date hereof and as of the Closing Date as follows:

        5.1     Organization of Parent and Merger Sub.     Parent and Merger Sub are corporations duly organized and validly existing under the laws of the State of Delaware and have all organizational power and authority required to own, lease and license their assets and properties and carry on their businesses as presently conducted. Parent and Merger Sub are each duly qualified or licensed to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the assets and properties owned, leased or licensed by them or the nature of their businesses makes such qualification or license necessary, except where the failure to be so qualified or licensed or in good standing would not have a material adverse effect on Parent's or Merger Sub's ability to consummate the transactions contemplated by, and discharge its obligations under, this Agreement.

        5.2     Capitalization.     

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        5.3     Parent Stock.     The shares of Parent Stock issuable in the Merger, when issued and delivered in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and non-assessable and the issuance thereof will not be subject to any pre-emptive rights. The issuance of the Parent Stock pursuant to this Agreement will not be integrated with the issuance of any other equity interest under the Securities Act or the rules and regulations of the SEC thereunder, in either case so as to subject such offering, issuance, or sale of the Parent Stock to the registration provisions of the Securities Act. Assuming the accuracy of the statements made by the Stockholders in the Accredited Investor Certifications, the offer, sale, and issuance of the Parent Stock pursuant to this Agreement will be exempt from the registration requirements of the Securities Act, and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

        5.4     Interim Operations of Merger Sub.     Merger Sub was formed by Parent solely for the purpose of engaging in the transactions contemplated by this Agreement, and has engaged in no other business activities other than those relating to this Agreement. Merger Sub has no liabilities or obligations other than those incident to its formation or pursuant to this Agreement and the Ancillary Agreements to which it is a party.

        5.5     Authorization.     

        5.6     Consents and Approvals.     Other than (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) the applicable requirements of the HSR Act, no approval of any Governmental Authority or other Person is required to be made or obtained by Parent or Merger Sub connection with the execution, delivery and performance of this Agreement and the

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Ancillary Agreements to which Parent and/or Merger Sub is a party or the consummation of the transactions contemplated hereby or thereby, except for Approvals which if not obtained would not have a material adverse effect on Parent's or Merger Sub's ability to consummate the transactions contemplated by, and discharge its obligations under, this Agreement.

        5.7     No Conflict or Violation.     Neither the execution and delivery of this Agreement and the Ancillary Agreements to which Parent or Merger Sub is a party, nor the consummation of the transactions contemplated hereby or thereby by Parent or Merger Sub, does or will (a) violate, breach or be in conflict with any provisions of the Organizational Documents of Parent or Merger Sub; (b) with or without the passage of time, the giving of notice or both, violate, breach, result in a default under or be in conflict with any Contract to which Parent or Merger Sub is a party; or (c) violate any Law or any Order to which Parent or Merger Sub is subject, which in the case of clauses (b) or (c) would have a material adverse effect on Parent's or Merger Sub's ability to consummate the transactions contemplated by, and discharge its obligations under, this Agreement.

        5.8     Parent SEC Reports .    As of the time filed with the SEC (or, if amended or superseded by a filing, then on the date of such filing) none of the registration statements, proxy statements, and other statements, reports, schedules, forms, exhibits and other documents required to be filed by Parent with the SEC (" Parent SEC Reports ") contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

        5.9     Parent Financial Statements .    The audited and unaudited financial statements of Parent (including the related notes) included or incorporated by reference in the Parent SEC Reports (x) are based on the books and records of the Parent; (y) fairly present in all material respects the financial condition of the Parent as of the dates therein indicated and the results of operations and cash flows of the Parent for the periods therein specified (subject, in the case of any unaudited balance sheet, to customary year-end adjustments); and (z) have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except any unaudited balance sheet does not contain footnotes required by GAAP or as may be indicated in the notes thereto).

        5.10     Internal Control over Financial Reporting .    Parent maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended (the " Exchange Act ")), that complies with the requirements of the Exchange Act and has been designed by Parent's principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Parent's internal control over financial reporting is effective for purposes of Rules 13a-15 and 15d-15 under the Exchange Act and Parent is not aware of any material weaknesses in its internal control over financial reporting. Since December 31, 2016, there has been no change in Parent's internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, Parent's internal control over financial reporting.

        5.11     Litigation .    There is no Action before any Governmental Authority pending or, to the knowledge of Parent, threatened, against Parent or Merger Sub, or affecting any of their properties or assets, which would have a material adverse effect on Parent's or Merger Sub's ability to consummate the transactions contemplated by, and discharge their obligations under, this Agreement.

        5.12     Compliance with Laws .    Parent is not in breach or default of any provisions of its Organizational Documents. Parent and its officers and directors (in their capacities as such) are in compliance with all Laws and Orders applicable to the Parent, except where failure to be in compliance would not have a Parent Material Adverse Effect.

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        5.13     Financing .    Parent has delivered to the Company a true and complete copy of the executed commitment letter and related exhibits, schedules, annexes and term sheets, dated as of the date of this Agreement, together with the related fee letter (solely in the case of the fee letter, with only the fee amounts, pricing, "market flex" provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted) (collectively, the " Debt Commitment Letter "), pursuant to which the Financing Sources have agreed, subject only to the Financing Conditions set forth therein, to provide or cause to be provided the debt financing set forth therein for the purposes of financing the transactions contemplated hereby, including the cash component of the aggregate consideration payable in the Merger. Such executed Debt Commitment Letter has not been amended or modified in any manner on or prior to the date of this Agreement and no amendment, termination or modification is contemplated (it being understood that neither the exercise of "market flex" provisions under the fee letter, nor the joinder or addition of any Financing Sources to the Debt Commitment Letter, shall be deemed an amendment or modification). Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other arrangement of any kind relating to the financing of the transactions contemplated by this Agreement, other than as set forth in the Debt Commitment Letter that reduces the amount of, or could affect the conditionality or availability of the Debt Financing on the Closing Date. Assuming (i) the accuracy of the representations and warranties of the Company set forth in this Agreement and (ii) the performance by the Company of its obligations hereunder, Parent will have sufficient funds to satisfy all of its obligations under this Agreement and to consummate the transactions contemplated hereby on the Closing Date. The commitments contained in the Debt Commitment Letter have not been withdrawn, terminated or rescinded in any respect. The Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent and, to the knowledge of Parent, each other party thereto, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and general principles of equity. Parent has fully paid (or caused to be paid) any and all fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or, to the knowledge of Parent, any other party thereto under the Debt Commitment Letter. There are no conditions precedent related to the funding of the full amount of the Debt Financing on the Closing Date other than the Financing Conditions. As of the date hereof, Parent has no reason to believe that, subject to the satisfaction of the conditions precedent set forth in Sections 8.1 and 8.3 , (i) any of the Financing Conditions will not be satisfied or (ii) the Debt Financing will not be made available to Parent on the Closing Date. As of the date hereof, Parent is not aware of any fact or occurrence that makes any of the assumptions, or the representations or warranties of Parent, in the Debt Commitment Letter inaccurate in any material respect. Parent acknowledges that the consummation of the Merger is not subject to any financing condition.

        5.14     No Material Adverse Effect .    Between March 31, 2017 and the date of this Agreement, there has been no Parent Material Adverse Effect.

        5.15     Intellectual Property .    Except as would not have a Parent Material Adverse Effect:

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        5.16     Tax .    Except as would not have a Parent Material Adverse Effect:

        5.17     No Brokers .    Except for Piper Jaffray & Co., the fees and expenses of which will be paid by Parent, none of Parent or Merger Sub, nor any of their respective representatives or Affiliates has employed or made any agreement with any broker, finder or similar agent or any Person which will result in the obligation of Parent or Merger Sub or any of their respective Affiliates to pay any finder's fee, brokerage fees or commission or similar payment in connection with the Merger or the other transactions contemplated by this Agreement or the Ancillary Documents.


ARTICLE VI.
COVENANTS

        6.1     Conduct of Business by the Company .    

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        6.2     Access to Information.     During the Interim Period, the Company shall (a) give Parent and its Affiliates, counsel, financial advisors, auditors, employees, agents and other representatives reasonable access to the offices, properties, employees, books and records and Contracts of the Company and its Subsidiaries, (b) furnish to Parent such financial and operating data and other information relating to the Company Group as Parent may reasonably request and (c) cooperate, and instruct the employees, counsel and financial advisors of the Company and its Subsidiaries to cooperate, with Parent in its investigation of the Company Group; provided, however, that the Company may restrict or otherwise prohibit access to such documents or information to the extent that 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; and provided, further, however, that no information or knowledge obtained in any investigation conducted pursuant to the access contemplated by this Section 6.2 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. Any investigation pursuant to this Section 6.2 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company Group.

        6.3     Consents; Filings .    

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        6.4     Company Written Consent; Stockholder Notice .    

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        6.5     Accredited Investor Certifications .    Parent, Merger Sub and the Company acknowledge and agree that the shares of Parent Stock to be issued as consideration in the Merger will not be registered under the Securities Act and will be transferred in reliance upon an exemption thereunder for transactions not involving a public offering. Notwithstanding anything to the contrary in this Agreement, a Stockholder shall be entitled to receive Parent Stock in connection with the Merger only if such Stockholder is a Designated Nonaccredited Investor or (a) is an accredited investor within the meaning of SEC Rule 501 of Regulation D, as presently in effect, under the Securities Act and (b) provides an executed accredited investor questionnaire in substantially the form attached hereto as Exhibit G (an " Accredited Investor Questionnaire ") no later than June 27, 2017 (the " Accredited Investor Questionnaire Deadline "). In furtherance of the foregoing, the Company shall, as promptly as practicable after the date of this Agreement (but in any event within five (5) Business Days), mail or otherwise deliver to each Stockholder and each holder of a warrant to purchase Company Capital Stock set forth on Section 4.2(c) of the Disclosure Schedule an Accredited Investor Questionnaire to be completed by such Stockholder and returned to Parent by the Accredited Investor Questionnaire Deadline. If any Stockholder or holder of a warrant to purchase Company Capital Stock delivers an Accredited Investor Questionnaire to the Company, the Company shall promptly deliver a copy of such Accredited Investor Questionnaire to Parent.

        6.6     Warrants.     The Company shall, as promptly as possible after the date of this Agreement (but in any event within five (5) Business Days), deliver to each holder of a warrant to purchase Company Capital Stock set forth on Section 6.6 of the Disclosure Schedule a notice of the Merger and the other transactions contemplated by this Agreement as required pursuant to the terms of each such warrant.

        6.7     Option Letter of Transmittal.     The Company shall, as promptly as practicable after the date of this Agreement (but in any event within five (5) Business Days), deliver to each Company Optionholder a letter of transmittal substantially in the form attached hereto as Exhibit H (the " Option Letter of Transmittal "). The Company shall (i) use reasonable best efforts to obtain a signed Option Letter of Transmittal from each Company Optionholder prior to the Closing and (ii) promptly deliver to Parent copies of all executed Option Letters of Transmittal received by the Company prior to the Closing.

        6.8     Tax Matters.     

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        6.9     Indemnification of Officers and Directors.     

        6.10     Confidentiality; Publicity.     

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        6.11     Stockholder Confidentiality.     As an owner of Company Capital Stock, each Stockholder has had access to and contributed to information and materials of a highly sensitive nature (including Confidential Information) of the businesses of the Company. As additional consideration for the Merger consideration payable pursuant to Section 2.1 and by executing a Stock Letter of Transmittal, each Stockholder agrees that unless such Stockholder first secures the written consent of an authorized representative of Parent, such Stockholder shall not (except on behalf of Parent or pursuant to the terms of such Stockholder's employment agreement with the Company or Parent) use for himself, herself, itself or anyone else, and shall not disclose to others, any Confidential Information relating to the business of the Company, except (a) to the extent necessary to comply with the Law, a Governmental Authority or a valid court order of a court with competent jurisdiction, in which event such Stockholder shall so notify Parent as promptly as is practicable (if possible, prior to making such disclosure) and shall seek confidential treatment of such information; (b) to its banks, auditors and attorneys and similar professionals ( provided , that such Stockholder shall be liable in the event that any such permitted recipients disclose any information that such Stockholder would be prohibited from disclosing pursuant to this provision); or (c) in order to enforce its rights pursuant to this Agreement.

        6.12     Waiver and Release.     

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        6.13     Exclusivity.     During the Interim Period, the Company shall not, and shall cause its Subsidiaries and its and their employees, stockholders and other representatives (including any investment bankers) not to (and shall not authorize any of them to) directly or indirectly: (i) solicit, initiate, encourage or facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate or engage in or continue any discussions or negotiations regarding, or furnish to any Person any nonpublic information of the Company Group with respect to, any Acquisition Proposal; (iii) approve, endorse or recommend any Acquisition Proposal; (iv) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or providing for the consummation of any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of the Stockholders. The Company shall, and shall cause its Subsidiaries and its and their employees, stockholders and other representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. As promptly as practicable (and in any event within one (1) Business Day) after receipt of any Acquisition Proposal or any request for nonpublic information or inquiry which it reasonably believes would lead to an Acquisition Proposal, the Company shall provide Parent with oral and written notice of the material terms and conditions of such Acquisition Proposal.

        6.14     280G Cooperation.     The Company will, prior to the Closing Date, submit to a Stockholder vote the right of any disqualified individual (as defined in Section 280G(c) of the Code) to receive or retain any and all payments and other benefits contingent (within the meaning of Section 280G(b)(2)(A)(i) of the Code) on the consummation of the transactions contemplated by this Agreement to the extent necessary so that no such payment or benefit would be a "parachute payment" under Section 280G(b) of the Code, in a manner that satisfies the shareholder approval requirements under Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, including Q&A 7 of Section 1.280G-1 of such regulations. Such vote shall establish the disqualified individual's right to the payment or other compensation, and the Company shall obtain any required waivers or consents from each such disqualified individual prior to the vote. Before the vote is submitted to Stockholders, the Company shall provide adequate disclosure to the Stockholders of all material facts concerning all payments that, but for such vote, could be deemed parachute payments to a disqualified individual under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. A reasonable period of time prior to the vote, Parent and its counsel shall have the right to review and comment on all documents to be delivered to the Stockholders in connection with such vote and any required disqualified individual waivers or consents, and the Company shall reflect all reasonable comments of Parent thereon. Parent and its counsel shall be provided copies of all documents executed by the Stockholders and disqualified individuals in connection with the vote provided under this Section 6.14 .

        6.15     Benefits Plans.     

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        6.16     Payoff Letters.     On or prior to the Closing Date, the Company shall deliver to Parent copies of executed payoff letters (provided that drafts of such letters shall be provided to Parent at least three (3) Business Days prior to the Closing Date) in respect of all Indebtedness of the Company and its Subsidiaries that is contemplated to be repaid at the Closing as set forth on Section 6.16 of the Disclosure Schedule (the " Existing Target Debt "), which (a) confirms the aggregate outstanding amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or any other outstanding and unpaid obligations under the Existing Target Debt as of the anticipated Closing Date (and the daily per diem accrual of interest thereafter) (the " Payoff Amount "), (b) provides that upon receipt of the applicable Payoff Amount, all agreements and instruments related to such Indebtedness shall be terminated, and (c) provides that all Encumbrances and all guarantees granted in connection with the Existing Target Debt shall be, upon the payment of the Payoff Amount at Closing, automatically released, terminated and discharged (the " Payoff Letters ")).

        6.17     Financing.     

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        For the avoidance of doubt, failure to obtain all or any portion of the Financing (or any alternative financing) shall not in and of itself relieve or alter the obligations of Parent to consummate the Merger and the other transactions contemplated by this Agreement upon the terms set forth herein (such obligation being subject only to the satisfaction of the conditions set forth in Sections 8.1 and 8.3 ).

        6.18     NYSE Listing.     Parent shall use its reasonable best efforts to cause the shares of Parent Stock to be issued in the Merger to be approved for listing on the New York Stock Exchange, subject to official notice of issuance.

        6.19     R&W Insurance Policy.     Parent and the Company agree to cooperate and use reasonable best efforts to take all actions that are reasonably necessary to cause the R&W Insurance Policy to be in effect at or prior to the Closing.

        6.20     Continuation of Benefits.     

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        6.21     Notices of Certain Events.     During the Interim Period, the Company shall promptly notify Parent of:

        No such notice shall be deemed to supplement or amend the Disclosure Schedule for the purpose of (x) determining the accuracy of any of the representations and warranties made by the Company in this Agreement or (y) determining whether any condition set forth in Article VIII has been satisfied.

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        6.22     Further Assurances.     Pursuant to the terms and subject to the conditions contained herein, the parties agree: (a) to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements, (b) to execute any documents, instruments or conveyances of any kind which may be reasonably necessary or advisable to carry out any of the transactions contemplated hereunder or thereunder, and (c) to cooperate with each other in connection with the foregoing.

        6.23     Legal Representation.     All communications involving attorney-client confidences among the Company Group and Ropes & Gray LLP in the course of the negotiation, documentation and consummation of the transactions contemplated by this Agreement will be deemed to be attorney-client confidences that belong solely to the Stockholders (and not the Surviving Corporation or its subsidiaries or Affiliates, including Parent) and may be controlled by the Stockholder Representative. Without limiting the generality of the foregoing, upon and after the Closing, (a) the Stockholders and their Affiliates (and not the Surviving Corporation or its subsidiaries or Affiliates, including Parent) will be the sole holders of the attorney-client privilege with respect to the negotiation, documentation and consummation of the transactions contemplated by this Agreement (collectively, the " Pre-Merger Communications "), and none of the Surviving Corporation or its subsidiaries or Affiliates (including Parent) will be a holder thereof, (b) to the extent that files of Ropes & Gray LLP with respect to the negotiation, documentation and consummation of the transactions contemplated by this Agreement constitute property of the client, only the Stockholders and their Affiliates will hold such property rights and (c) Ropes & Gray LLP will not have any duty whatsoever to reveal or disclose the Pre-Merger Communications or files pertaining to the Pre-Merger Communications to the Surviving Corporation or any of its subsidiaries or Affiliates (including Parent) by reason of any attorney-client relationship between any of Ropes & Gray LLP and the Company or otherwise. Notwithstanding the foregoing, in the event that a dispute arises between the Surviving Corporation or their subsidiaries or Affiliates, including Parent, on the one hand, and a third party other than the Stockholders, on the other hand, Parent may assert the attorney-client privilege to prevent the disclosure of the Pre-Merger Communications to such third party or waive such privilege if desired in connection with resolving such dispute. In the event that Parent is legally required or requested by governmental order or otherwise (any such request or order, a " Legal Request ") to access or obtain a copy of all or a portion of the Pre-Merger Communications, Parent shall be entitled to access or obtain a copy of and disclose the Pre-Merger Communications to the extent necessary to comply with any such Legal Request. In the event of any Legal Request, Parent shall promptly notify the Stockholder Representative in writing (prior to the disclosure by Parent of any Pre-Merger Communications to the extent practicable) so that the Stockholder Representative can seek a protective order and Parent agrees to use all commercially reasonable efforts (at the sole cost and expense of the Stockholder Representative) to assist therewith.

        6.24     Earn Out.     Prior to the Closing Date, Parent and the Company shall use their reasonable best efforts to assign the Company's right to receive the earn out payment (the " Earn Out ") set forth in Section 2 of Schedule 7 of the Agreement for the Sale and Purchase of the Entire Issued Share Capital of the Best Doctors Insurance Group, among Best Doctors Inc., Tamsin (Holdings) Limited and Asia Bright (H.K.) Limited, to a newly created entity owned by the Stockholders in the same proportion to their ownership of the Company without Liability to Parent or the Company Group. For the avoidance of doubt, to the extent that the Earn Out is assigned to a newly created entity owned by the Stockholders prior to the Closing Date, neither Parent nor the Surviving Corporation shall have any right to the Earn Out, it being understood that all payments of the Earn Out received shall be directed as designated by the Stockholder Representative to the Stockholders after the Closing. The parties will cooperate to structure any assignment of the Earn Out shall be done in a manner that minimizes tax to Parent, the Company Group and the Company Equityholders following the Closing.

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ARTICLE VII.
INDEMNIFICATION; REMEDIES

        7.1     Survival of Representations, Etc.     All of the representations and warranties made by any party in this Agreement shall survive the Closing for a period of twelve (12) months following the Closing Date (except that the representations and warranties set forth in Sections 4.1 (Organization), 4.2  (Capitalization), 4.3 (Authorization), 4.24 (No Brokers), 5.1 (Organization), 5.2 (Capitalization), 5.3  (Parent Stock), 5.5 (Authorization) and 5.16 (No Brokers) (such representations and warranties collectively, the " Fundamental Representations ") and the representations and warranties set forth in Section 4.21 (Tax Matters) shall survive until 30 days following the expiration of the applicable statute of limitations (with extensions)). The covenants and agreements of the parties to be performed prior to the Closing Date shall survive the Closing for a period of twelve (12) months following the Closing Date. The covenants and agreements of any party to be performed or observed on or following the Closing shall survive the Closing until fully performed in accordance with their terms. Notwithstanding the foregoing, if written notice of a claim has been given on or prior to the applicable survival date for the representation, warranty, covenant or agreement on which such claim is based, then such representation, warranty, covenant or agreement shall survive as to such claim, and such claim only, until final determination and satisfaction of such claim. Notwithstanding anything to the contrary in this Agreement and the Ancillary Agreements, (i) the survival period with respect to all matters relating to Taxes, including, but not limited to, the representations and warranties set forth in Section 4.21 (Tax Matters) and Indemnified Taxes, shall be as provided in this Section 7.1 only for the purposes of the R&W Insurance Policy, and (ii) no claim shall be made against the Company Equityholders, other than with respect to claims under Section 7.2(a)(iii) or (vii)  or as set forth in Section 7.3(d) or Section 7.3(f) and breaches or inaccuracies of Fundamental Representations, after the earlier of the date that is (a) the twelve (12) month anniversary of the Closing Date or (b) the release date of all amounts from the Indemnity Escrow Account, in each case as more fully provided in the Escrow Agreement with respect to the Indemnity Escrow Account.

        7.2     Indemnification.     

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        7.3     Limitations on Indemnity.     

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        7.4     Direct Claims Indemnification Procedures.     

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        7.5     Defense of Third-Party Claims.     

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        7.6     Effect of Knowledge or Waiver of Condition.     The right to indemnification, payment of Losses or other remedy based on any representations, warranties, covenants and agreements will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedies based on such representations, warranties, covenants and agreements.

        7.7     Escrow; Payment.     

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        7.8     No Contribution.     No Stockholder shall have, and no Stockholder shall exercise or assert (or attempt to exercise or assert), any right of contribution or right of indemnity against the Surviving Corporation or any of its Subsidiaries, in connection with any indemnification obligation to a Parent Indemnitee to which such Stockholder may become subject under or in connection with this Agreement.

        7.9     Indemnification Sole Remedy.     Except (a) for the ability of Parent, Merger Sub or the Company to obtain equitable remedies in connection with any breach or threatened breach of any of the covenants and agreements of the parties set forth herein; (b) as specified in Section 7.3(d) and Section 7.3(f) , and (c) with respect to the representations of BBH and BBH QP set forth in Section 2.5(b) and (c) , (i) the indemnification rights provided pursuant to this Article VII shall be the sole and exclusive remedies of the parties and their respective officers, directors, employees, affiliates, agents, representatives, successors and assigns for any breach of any representations and warranties and covenants and agreements contained in this Agreement; and (ii) each party hereby irrevocably waives any right to any remedy relating to any such breach other than the indemnification rights provided pursuant to this Article VII (whether by contract, common law, statute, regulation or otherwise). For the avoidance of doubt, except with respect to claims under Section 7.2(a)(iii) or (vii)  or as set forth in Section 7.3(d) or Section 7.3(f) and breaches or inaccuracies of Fundamental Representations, the Stockholders shall have no liability in excess of the Cap regardless of whether Losses are recoverable under the R&W Insurance Policy.

        7.10     Tax Consequences of Payments.     Any payments made to an Indemnified Party pursuant to any indemnification obligations under this Article VII will be treated as adjustments to the purchase price for all federal, state, local and foreign Tax purposes, and the parties shall file their respective Tax Returns accordingly and such agreed treatment will govern for purposes of this Agreement, unless otherwise required by law.

        7.11     Losses Net of Insurance.     Losses indemnifiable pursuant to this Article VII shall be reduced by the amount of insurance proceeds or indemnity, contribution or other similar amounts actually recovered by Parent with respect to the Losses, net of any likely increase in premium, or cost of recovery. If a Parent Indemnitee recovers, under insurance policies (other than any amounts related to the retention under the R&W Insurance Policy) or from other collateral sources, any amount in respect of a matter for which such Parent Indemnitee was already indemnified by the Company Equityholders pursuant to Section 7.2(a) , Parent shall promptly pay over to the amount so recovered (after deducting therefrom the full amount of the reasonable out-of-pocket expenses incurred by such Parent Indemnitee in obtaining such recovery) to the Paying Agent, for further distribution to the Stockholders, and Parent or an Affiliate of Parent, for further distribution to the Company Optionholders through the payroll system of Parent or its Subsidiary subject to applicable Tax withholding.


ARTICLE VIII.
CONDITIONS TO CLOSING

        8.1     Conditions to the Obligations of Each Party.     The respective obligation of each party to consummate the Closing shall be subject to the satisfaction (or waiver in writing by each party to the extent permitted by applicable Law), at or prior to the Closing, of each of the following conditions:

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        8.2     Conditions to Obligations of the Company.     The obligation of the Company to consummate the Closing shall be subject to the satisfaction (or waiver in writing by the Company to the extent permitted by applicable Law), at or prior to the Closing, of each of the following conditions:

        8.3     Conditions to Obligations of Parent and Merger Sub.     The respective obligation of Parent and Merger Sub to consummate the Closing shall be subject to the satisfaction (or waiver in writing by Parent to the extent permitted by applicable Law), at or prior to the Closing, of each of the following conditions:

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ARTICLE IX.
TERMINATION

        9.1     Termination.     This Agreement may be terminated, and the Merger and the other transactions contemplated hereby may be abandoned, by action taken or authorized by the board of directors of the terminating party or parties at any time:

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        9.2     Effect of Termination.     In the event of termination of this Agreement by either the Company or Parent as provided in Section 9.1 , written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and this Agreement shall become void and there shall be no liability or obligation on the part of the Parent, Merger Sub, the Company, the Stockholders or their respective Subsidiaries, officers or directors or any Financing Source Related Party, except that (i)  Section 6.10 , this Section 9.2 and Article X shall survive any such termination and (ii) nothing contained in this Agreement shall relieve any party to this Agreement from any liability resulting from fraud, intentional misrepresentation or a willful and material breach of this Agreement prior to such termination.


ARTICLE X.
MISCELLANEOUS

        10.1     Defined Terms.     As used herein, the terms below shall have the following meanings. Any such term, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.

        " Abundant Warrant " shall mean that certain Warrant for Purchase of Preferred Shares, dated as of November 5, 2015, issued by Best Doctors Holdings, Inc. to Abundant Venture Partners Holding LLC.

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        " Accredited Investor " means a Person that (a) is, as of the Effective Time, an "accredited investor" within the meaning of SEC Rule 501 of Regulation D, as presently in effect, under the Securities Act and (b) delivers an Accredited Investor Certification to Parent by the Accredited Investor Certification Deadline.

        " Acquisition Proposal " means, other than the Merger, any offer, proposal or inquiry relating to, or any Person's indication of interest in, (a) the sale, license or other disposition of all or a material portion of the business or assets of the Company or any Company Subsidiary, (b) the issuance, disposition or acquisition of (i) any capital stock or other equity security of the Company or any Subsidiary of the Company (other than in connection with the exercise of any Company Option outstanding on the date hereof), (ii) any subscription, option, call, warrant, preemptive right, right of first refusal or any other right (whether or not exercisable) to acquire any capital stock or other equity security of the Company or any Subsidiary of the Company (other than the grant of Company Options to newly hired employees of the Company in the ordinary course of business consistent with past practices), or (iii) any security, instrument or obligation that is or may become convertible into or exchangeable for any capital stock or other equity security of the Company or any Subsidiary of the Company or (c) any merger, consolidation, business combination, reorganization or similar transaction involving the Company or any Subsidiary of the Company.

        " Action " shall mean any action, complaint, claim, suit, litigation, proceeding, labor dispute, arbitral action, governmental audit, criminal prosecution, civil or criminal investigation or unfair labor practice charge or complaint.

        " Affiliate " shall mean, when used with reference to any specified Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, "control," when used with respect to any specified Person, means the power to direct or cause the direction of management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

         "Aggregate BBH Warrant Cash Amount " shall mean an amount of cash equal to (i) the BBH Warrant Cash Consideration plus (ii) the BBH QP Warrant Cash Consideration.

        " Aggregate BBH Warrant Share Consideration " shall mean a number of shares of Parent Stock equal to the sum of (i) the BBH Warrant Share Consideration plus (ii) the BBH QP Warrant Share Consideration.

        " Aggregate Closing Consideration Value " shall mean (a) the product of (i) Net Parent Shares (if any) multiplied by (ii) Parent Stock Value plus (b) the Estimated Closing Cash Amount plus (c) the Additional Cash Amount, if any minus (d) the Aggregate BBH Warrant Cash Amount.

        " Ancillary Agreements " shall mean the Escrow Agreement and all other agreements, instruments, documents and certificates executed, filed or otherwise prepared, exchanged or delivered in accordance with this Agreement.

        " Approval " shall mean any approval, authorization, release, consent, qualification, permit or registration, or any waiver of any of the foregoing, required to be obtained from, or any notice, statement or other communication required to be filed with or delivered to, any Governmental Authority or any other Person.

        " BBH Warrant " shall mean that certain Best Doctors Holdings, Inc. Warrant to Purchase Shares of Stock, issued by the Company to BBH Capital Partners IV, L.P. on May 9, 2016.

        " BBH QP Warrant " shall mean that certain Best Doctors Holdings, Inc. Warrant to Purchase Shares of Stock, issued by the Company to BBH Capital Partners QP IV, L.P. on May 9, 2016.

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        " Business Day " shall mean a day other than Saturday, Sunday or any day on which banks located in the State of New York are authorized or obligated to close.

        " Cash " shall mean the aggregate amount of unrestricted cash, bank deposits and marketable securities, in each case as defined in accordance with GAAP; provided , that cash shall not be considered restricted cash due to the fact it is held outside the United States. For the avoidance of doubt, Cash shall (a) include checks, wires and drafts deposited for the account of the Company but not yet reflected as available proceeds in the Company Group's accounts and (b) be reduced by the sum of (i) any outstanding checks issued by the Company Group and (ii) any cash overdrafts and negative balances in the Company Group's accounts.

        " Cash Amount " means an amount equal to (i) $375,000,000; minus (ii) the Transaction Expenses; minus (iii) the Closing Indebtedness; plus (iv) the Closing Cash; plus (v) the amount (if any) by which Working Capital exceeds the Working Capital Target; minus (vi) the amount (if any) by which the Working Capital Target exceeds the Working Capital.

        " Cambia Warrant " shall mean that certain Warrant for Purchase of Preferred Shares, dated as of November 5, 2015, issued by Best Doctors Holdings, Inc. to Cambia Health Solutions, Inc.

        " Claypool Warrant " shall mean that certain Warrant for Purchase of Preferred Shares, dated as of November 5, 2015, issued by Best Doctors Holdings, Inc. to Forrest Claypool.

        " Closing Cash " shall mean the Cash held by the Company Group as of immediately prior to the Closing on the Closing Date.

        " Closing Date Special Escrow Amount " shall mean 25% of the amount payable pursuant to Section 2.4 in respect of all Company Options for which the holder thereof has not returned an Option Letter of Transmittal.

        " Closing Indebtedness " shall mean the Indebtedness of the Company Group as of immediately prior to the Closing on the Closing Date.

        " Code " shall mean the Internal Revenue Code of 1986, as amended.

        " Common Consideration " shall mean the aggregate value the Company Common Stock calculated assuming conversion of the Company Series G Preferred Stock, Company Series J Preferred Stock and Company Series K Preferred Stock into Company Common Stock based on the Aggregate Closing Consideration Value and in accordance with the Company's Organizational Documents and taking into account (i) amounts necessary to make payments to Company Optionholders in accordance with Section 2.4 and (ii) the Series I Consideration.

        " Common Per Share Amount " shall mean the quotient of (a) the Common Consideration divided by (b) the aggregate number of shares of Company Common Stock, Company Series G Preferred Stock, Company Series J Preferred Stock and Company Series K Preferred Stock outstanding immediately prior to the Effective Time.

        " Common Per Share Stock Amount " shall mean the number of shares of Parent Stock equal to the quotient of (a) the Net Parent Shares, divided by (b) the aggregate number of shares of Company Common Stock, Company Series G Preferred Stock, Company Series J Preferred Stock and Company Series K Preferred Stock outstanding immediately prior to the Effective Time owned by Accredited Investors or Designated Nonaccredited Investors.

        " Common Stockholders " shall mean any holder of Company Common Stock immediately prior to the Effective Time.

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        " Company Capital Stock " shall mean the Company Common Stock, the Company Series G Preferred Stock, the Company Series I Preferred Stock, the Company Series J Preferred Stock and the Company Series K Preferred Stock, taken together.

        " Company Common Stock " shall mean shares of common stock, par value $0.01, of the Company.

        " Company Equity Plan " shall mean the Company's Amended and Restated 2007 Stock Option and Incentive Plan.

        " Company Equityholder " shall mean the Stockholders and the Company Optionholders.

        " Company Group " shall mean the Company and each of its Subsidiaries.

        " Company Material Adverse Effect " shall mean any event, circumstance, change or condition that, when taken individually or together with all other events, circumstances, changes or conditions, has or would reasonably be expected to have a materially adverse effect on the condition (financial or otherwise), properties, assets, liabilities, business, or operations of the Company and its Subsidiaries, except to the extent resulting from (a) changes in general local, domestic, foreign, or international economic conditions or credit or financial or capital markets, including changes in interest or exchange rates, (b) changes affecting generally the industry in which the Company and its Subsidiaries operate, (c) flood, earthquake, other natural disaster, acts of war, sabotage or terrorism, military actions or the escalation thereof, (d) any changes in applicable Law or GAAP, or any changes in the interpretation or enforcement of any of the foregoing, or any changes in general legal, regulatory or political conditions, (e) any action required by this Agreement or consented to by Parent, or (f) the announcement of this Agreement and the transactions contemplated hereby, provided in the case of (b) that such event, circumstance, change or condition does not affect the Company and its Subsidiaries, taken as a whole, in a substantially disproportionate manner as compared with other participants in the industries in which the Company and its Subsidiaries operate.

        " Company Option " means an option to purchase Company Common Stock issued under the Company Equity Plan.

        " Company Optionholders " shall mean holders of Company Options.

        " Company Products or Services " means those products (including computer programs or mobile applications) and/or services currently or formerly licensed out, leased out, sold, provided, and/or distributed by the Company.

        " Company Proprietary Software " means any Software that is, or is purported to be, owned by the Company.

        " Company Series G Preferred Stock " shall mean the Series G Preferred Stock, par value $0.01, of the Company.

        " Company Series I Preferred Stock " shall mean the Series I Preferred Stock, par value $0.01, of the Company.

        " Company Series J Preferred Stock " shall mean the Series J Preferred Stock, par value $0.01, of the Company.

        " Company Series K Preferred Stock " shall mean the Series K Preferred Stock, par value $0.01, of the Company.

        " Confidential Information " shall mean any and all trade secrets, confidential business or technical information, and proprietary information and materials, whether or not stored in any medium, relating to the Company Group, including, but not limited to, business information, technology, technical documentation, product or service specifications or strategies, marketing plans, research and development, designs, formulae, computer programs, pricing information, financial information,

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information relating to existing, previous and potential suppliers, customers, contracts and other know-how.

        " Confidentiality Agreement " shall mean that Confidentiality Agreement, dated as of March 7, 2017, by and between Parent and Best Doctors, Inc.

        " Contract " shall mean any contract, agreement, lease, license, sales order, purchase order or other legally binding commitment or instrument, whether or not in writing and whether or not executed.

        " Debt Financing " means the debt financing incurred or intended to be incurred pursuant to the Debt Commitment Letter.

        " Debt Financing Documents " means the definitive agreements with respect to the Debt Financing, including without limitation, all credit agreements, loan documents, purchase agreements, underwriting agreements, indentures, debentures, notes, intercreditor agreements and security documents pursuant to which the Debt Financing will be governed.

        " Deferred Compensation Plan " shall mean the Best Doctors, Inc. Executive Nonqualified Excess Plan, as amended.

        " Designated Nonaccredited Investor " shall mean up to an aggregate of thirty-five Common Stockholders, Series G Preferred Stockholders, Series J Preferred Stockholders and Series K Preferred Stockholders who (i) deliver an Accredited Investor Certification to Parent by the Accredited Investor Certification Deadline, (ii) indicate on the Accredited Investor Questionnaire that they are not an "accredited investor" within the meaning of SEC Rule 501 of Regulation D, as presently in effect, under the Securities Act, (iii) are determined by Parent in its reasonable discretion to be sophisticated within the meaning of securities Laws and (iv) hold the largest number of shares of Company Common Stock on an as-converted basis out of those Common Stockholders, Series G Preferred Stockholders, Series J Preferred Stockholders and Series K Preferred Stockholders who meet the qualifications set forth in clauses (i) through (iii).

        " Disclosure Schedule " shall mean a schedule executed and delivered by the Company to Parent and Merger Sub as of the date hereof which sets forth the exceptions to the representations and warranties contained in Article IV hereof and certain other information called for by this Agreement.

        " Employee Benefit Plan " shall mean (i) each "employee benefit plan" as defined in Section 3(3) of ERISA (whether or not subject to ERISA) and (ii) each other plan, policy, program, agreement, understanding or arrangement (whether written or oral) establishing, providing for or memorializing the terms of any of the following: employment, consulting, service, deferred compensation, bonus, incentive compensation, compensatory equity or equity-linked awards or incentives, severance, termination, retirement, supplemental retirement, pension, profit-sharing, excess benefit, retention, transaction, change in control, salary continuation, tuition assistance, dependent care assistance, legal assistance, vacation, leave of absence, paid-time-off, fringe benefit, health, medical, retiree medical, dental, vision, disability, accident, life insurance or survivor benefit, savings, cafeteria, insurance, flexible spending, adoption/dependent/employee assistance or any other form of compensation or benefit, in each case, (a) which is maintained, participated in, contributed to, entered into, sponsored by the Company, any of its Subsidiaries or any of their ERISA Affiliates with respect to any current or former individual service provider of the Company (or any dependent or beneficiary thereof) or (b) as to which the Company Group has any Liability.

        " Employment Statute " shall mean any federal, state or municipal employment, labor or employment discrimination Law, including without limitation, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, ERISA, the WARN Act, the Family and Medical Leave Act, the Immigration Reform and Control Act of 1986, the

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California Fair Employment and Housing Act, the California Family Rights Act, and the California Labor Code, and all amendments to each such Law as well as the regulations issued thereunder.

        " Encumbrance " shall mean any claim, lien, pledge, option, charge, equitable interest, right of first refusal or similar restriction of any kind, security interest, deed of trust, mortgage, pledge, hypothecation or other similar encumbrance.

        " ERISA " shall mean the Employee Retirement Income Security Act of 1974, as amended.

        " ERISA Affiliate " shall mean any entity, trade or business (whether or not incorporated) that, together with the Company Group, is required to be treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or is under common control with the Company Group within the meaning of Section 4001(a)(14) of ERISA.

        " Financing Conditions " shall mean the conditions precedent set forth in (x) Section 3, (y) under the heading "Conditions Precedent" in Exhibit A and (z) in Exhibit B, in each case of the Debt Commitment Letter.

        " Financing Deliverables " shall mean the following documents to be delivered in connection with the Debt Financing: (a) customary perfection certificates required in connection with the Debt Financing, corporate organizational documents, good standing certificates contemplated by the Debt Commitment Letter or reasonably requested by Parent or its Financing Sources; (b) to the extent requested at least nine (9) Business Days prior to the Closing Date, documentation and other information as may be required by United States regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations within three (3) Business Days prior to the Closing Date; (c) customary evidence of property and liability insurance of the Company with customary endorsements in favor of secured financing sources; (d) customary authorization letters in connection with the Marketing Material (including with respect to presence or absence of material non-public information and accuracy of the information contained therein); and (e) agreements, documents or certificates that facilitate the creation or perfection, in each case as of the Closing, of liens securing such Debt Financing (including original copies of all certificated securities (with transfer powers executed in blank), control agreements, surveys and title insurance) as are reasonably requested by Parent or its Financing Sources.

        " Financing Source Related Parties " shall mean the Financing Sources and their Affiliates, and their respective equityholders, members, partners, officers, directors, employees, agents, advisors and representatives and the successors and assigns of any of the foregoing.

        " Financing Sources " shall mean parties to the Debt Commitment Letter, including the parties to any joinder agreements relating to the Debt Commitment Letter.

        " Foundation Warrant " shall mean that certain Warrant for Purchase of Preferred Shares, dated as of November 5, 2015, issued by Best Doctors Holdings, Inc. to Foundation Medical Partners III, L.P.

        " GAAP " shall mean United States generally accepted accounting principles and practices, consistently applied.

        " Governmental Authority " shall mean any United States, foreign, supra-national, federal, state, provincial, local or self-regulatory governmental, regulatory or administrative authority, agency, division, body, organization or commission or any judicial or arbitral body.

        " HSR Act " shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

        " Indebtedness " shall mean, with respect to any Person at any date, without duplication: (a) all obligations of such Person for borrowed money or in respect of loans or advances; (b) all obligations of such Person evidenced by bonds, notes or other similar instruments; (c) all obligations in respect of letters of credit and bankers' acceptances, in each case, to the extent drawn and not reimbursed, issued

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for the account of such Person; (d) all obligations and liabilities of such Person under leases required under GAAP to be capitalized; (e) any obligations and liabilities of such Person arising under any hedging or swap agreements; (f) all guarantees of such Person in connection with any of the foregoing; and (g) any accrued interest and prepayment premiums, fees, expenses or penalties relating to any of the foregoing.

        " In-the-Money Option " shall mean a Company Option with an exercise price per share that is less than the Common Per Share Consideration.

        " Indemnified Taxes " shall mean (a) any Taxes of any member of the Company Group with respect to any Pre-Closing Tax Period, (b) any Taxes for which a member of the Company Group (or a predecessor of such member) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date, and (c) the Taxes of any Person (other than a member of the Company Group) imposed on any member of the Company Group as a transferee or successor, by Contract or otherwise, in each case as a result of a transaction consummated on or before the Closing Date.

        " Intellectual Property " shall mean all worldwide intellectual property and proprietary rights in any jurisdiction, whether registered or unregistered, including, but not limited to (a) trademarks, trade names, service marks, trade dress, business names (including any fictitious or "dba" names), slogans, logos, all translations, adaptations, derivations and combinations of the foregoing and other forms indicia or origin, whether or not registrable as a trademark in any given country, together with all goodwill associated therewith, and registrations and applications for registration of the foregoing (collectively, " Marks "); (b) patents, patent applications (and any patents that issue as a result of those patent applications), and inventions (whether or not patentable or whether or not reduced to practice), invention disclosures, together with all improvements, reissues, continuations, continuations-in-part, revisions, divisional, extensions and re-examinations (collectively, " Patents "); (c) original works of authorship in any medium of expression, whether or not published, all copyrights therein, together with any moral rights related thereto, and all registrations and applications for registration of such copyrights (collectively, " Copyrights "); (d) Internet domain names (collectively, " Domain Names "); (e) Software, (f) know-how, trade secrets, confidential information, customer lists, technical in information, and confidential business information (including confidential data, process technology, plans, drawings, and blue prints) (collectively, " Trade Secrets "); (g) rights of endorsement, publicity or privacy rights to name and likeness, and similar rights; and (h) all claims, causes of action, rights to sue for past, present and future infringement or unconsented use of any of the foregoing, and all products, proceeds and revenues arising from or relating to any and all of the foregoing.

        " IRS " shall mean the United States Internal Revenue Service or any successor agency.

        " Knowledge " or " Knowledge of the Company " shall mean the actual knowledge, after reasonable investigation and inquiry, of any of Peter McClennen, Kelly Bliss, Michael Salsbury, John McLean, Suzanne Leary and Ryan Schoenecker.

        " Law " shall mean any present or future constitutional provision, act, statute or other law, ordinance, rule, regulation or binding interpretation of any Governmental Authority and any binding and enforceable decree, injunction, judgment, order, ruling, assessment, writ or similar form of decision or determination issued by a Governmental Authority.

        " Liability " shall mean any burden, liability or obligation, whether known or unknown, disclosed or undisclosed, matured or unmatured, accrued or unaccrued, asserted or unasserted, due or to become due, direct or indirect, contingent, conditional, derivative, joint, several or secondary.

        " Losses " shall mean and include any loss, damage, injury, Liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including any reasonable outside legal fee, accounting fee,

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expert fee or advisory fee), charge, cost (including any cost of investigation, defense and settlement and interest and penalties) or expense of any nature, but shall not include (i) consequential, diminution in value, special or indirect damages, except to the extent such damages are the reasonably foreseeable result of the matter for which indemnification is sought hereunder or are actually paid to a third Person, to the extent arising from any Third-Party Claim, or (ii) punitive damages, except to the extent actually paid to a third Person, to the extent arising from any Third-Party Claim.

        " LTIP " shall mean the Company's Long-Term Incentive Plan, as amended.

        " LTIP Payment " shall mean the aggregate amount payable pursuant to the LTIP.

        " Marketing Material " shall mean each of the following: (a) customary bank books, information memoranda and other information packages regarding the business, operations and financial condition of the Company; (b) customary "road show" presentations and preliminary and final prospectuses, offering memoranda or private placement memoranda suitable for use in a customary "road show"; and (c) all other marketing material contemplated by the Debt Commitment Letter or reasonably requested by Parent or its Financing Sources in connection with the syndication or other marketing of the Debt Financing.

        " Material Contracts " shall mean all of the following Contracts to which any member of the Company Group is a party or is bound:

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        " Net Parent Shares " shall mean a number of shares of Parent Stock equal (i) the Total Parent Shares minus (ii) the Aggregate BBH Warrant Share Consideration.

        " Open Source Software " means any Software that is licensed, distributed or conveyed as "open source software," "free software," "copyleft" or under a similar licensing or distribution model, or under a contract that requires as a condition of its use, modification or distribution that other Software into which such Software is incorporated or with which such Software is combined or distributed or that is derived from or links to such Software, be disclosed or distributed in Source Code form,

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delivered at no charge or be licensed, distributed or conveyed under some or all of the terms as such contract (including Software licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Affero General Public License, Mozilla Public License (MPL), BSD licenses, Microsoft Shared Source License, Common Public License, Netscape Public License, Sun Community Source License (SCSL), Sun Industry Standards License (SISL), Apache License and any license listed at www.opensource.org).

        " Order " shall mean any: (a) temporary, preliminary or permanent order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, stipulation, subpoena, writ or award that is or has been issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Authority or any arbitrator or arbitration panel; or (b) contract with any Governmental Authority that is or has been entered into in connection with any Action.

        " Organizational Documents " shall mean (a) the articles or certificate of incorporation, all certificates of determination and designation, and the bylaws of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate or articles of limited partnership of a limited partnership; (d) the operating agreement, limited liability company agreement and the certificate or articles of organization or formation of a limited liability company; (e) any charter or similar document adopted or filed in connection with the creation, formation or organization of any other Person; and (f) any amendment to any of the foregoing.

        " Parent Material Adverse Effect " shall mean any event, circumstance, change or condition that, when taken individually or together with all other events, circumstances, changes or conditions, would or would reasonably be expected to have a materially adverse effect on the condition (financial or otherwise), properties, assets or business of the Parent and its subsidiaries, taken as a whole; provided, however, that none of the following constitute, or will be considered in determining whether there has occurred, a Parent Material Adverse Effect: (a) the negotiation, execution, announcement or performance of this Agreement or the consummation of the transactions contemplated hereby; (b) changes in Law or GAAP, or any changes in the interpretation or enforcement of any of the foregoing, or any changes in general legal, regulatory or political conditions; (c) changes generally affecting the economy, credit or financial or capital markets, in the United States or elsewhere in the world, including changes in interest or exchange rates; (d) changes to the industry or markets in which the business of the Parent and its subsidiaries operate other than any change which disproportionately affects Parent and its subsidiaries; (e) a flood, earthquake or other natural disaster or any act of terrorism or war affecting the United Sates or elsewhere in the world; or (f) changes in the price or trading volume of the Parent Stock.

        " Parent Stock " shall mean shares of common stock, par value $0.01, of Parent.

        " Parent Stock Value " shall, for purposes of this Agreement, be the numerical average of the volume-weighted average trading price on the New York Stock Exchange for one (1) share of Parent Stock for the five (5) full trading days ending on and including the full trading day immediately prior to the Closing Date.

        " Payments Administrator " means Acquiom Clearinghouse LLC to act as payments administrator.

        " Pending Claims Amount " shall mean amount that would be necessary in Parent's reasonable good faith judgment to satisfy any then pending and unsatisfied or unresolved claims for indemnification by any Parent Indemnitee specified in any Claim Certificate or Third-Party Claim Notice delivered to the Stockholder Representative prior to such date if such claims were resolved in full in favor of the Parent Indemnitees.

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        " Per Share Cash Consideration " shall mean an amount in cash equal to the Common Per Share Amount; provided that such amount shall be adjusted to give effect to the Series D/E Payment in accordance with the Shareholders Agreement.

        " Per Share Mixed Consideration " shall mean (a) an amount equal in cash equal to (i) the Common Per Share Amount minus (ii) the product of (A) the Common Per Share Stock Amount multiplied by (B) the Parent Stock Value and (b) the Common Per Share Stock Amount; provided that such amount shall be adjusted to give effect to the Series D/E Payment in accordance with the Shareholders Agreement.

        " Permits " shall mean all licenses, permits, franchises, approvals, authorizations, consents or orders of, or filings with, any Governmental Authority, whether foreign, federal, state or local, or any other Person, necessary for the operation of the business of the Company Group as currently conducted.

        " Permitted Encumbrance " means: (a) mechanics', carriers', repairmans', materialmen's and similar Encumbrances not yet due and payable or which are being contested in good faith; (b) Encumbrances for Taxes not yet due and payable or which are being contested in good faith; (c) purchase money Encumbrances and Encumbrances securing rental payments under capital or operating lease arrangements; (d) in the case of tangible personal property or owned or leased real property, covenants, conditions, restrictions, easements, survey exceptions, imperfections of title which (i) are matters of record or may be shown or disclosed by an inspection, survey or title report or other similar report or (ii) do not materially detract from the value of, or materially interfere with the present or presently contemplated use of, the property subject thereto or affected thereby, (e) any Encumbrances reflected in the Financial Statements, and (f) other than with respect to the capital stock of any member of the Company Group, Encumbrances individually or in the aggregate, that would not reasonably be expected to be material to the Company and its subsidiaries.

        " Person " shall mean any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.

        " Personal Information " shall mean any information relating to an identified or identifiable natural person; an "identifiable person" is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, including without limitation unique device or browser identifiers; and shall also mean "personal information" as defined by applicable Laws relating to the collection, use, storage, and/or disclosure of information about an identifiable individual.

        " Post-Closing Tax Period " shall mean (a) any Tax period beginning after the Closing Date and (b) with respect to any Straddle Period, the portion of such period beginning after the Closing Date.

        " Pre-Closing Tax Period " shall mean (a) any Tax period ending on or before the Closing Date and (b) with respect to any Straddle Period, the portion of such period ending on the Closing Date.

        " Pro Rata Portion " shall mean, with respect to each Stockholder, a percentage equal to the quotient of (A) the aggregate value of the consideration payable to such Stockholder as of the Effective Time as set forth on the Closing Consideration Schedule (valuing each share of Parent Stock at the Parent Stock Value) divided by (B) aggregate value of the consideration payable by Parent in the Merger (valuing each share of Parent Stock at the Parent Stock Value).

        " Property Taxes " means all property Taxes, personal property Taxes and similar ad valorem Taxes.

        " R&W Insurance Policy " shall mean the following policy of insurance: Buyer-Side Representations and Warranties Insurance Policy issued by Ironshore Insurance Services LLC.

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        " Required Financing Information " shall mean the financial statements with respect to the Company and its consolidated Subsidiaries set forth in paragraphs 4 and 7 of Exhibit B to the Debt Commitment Letter.

        " Sante Warrant " shall mean that certain Warrant for Purchase of Preferred Shares, dated as of November 5, 2015, issued by Best Doctors Holdings, Inc. to Santé Health Ventures I, LP.

        " SEC " means the Securities and Exchange Commission of the United States of America.

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

        " Series D/E Payment " shall mean the aggregate amount payable to the Former Series D/E Investors (as defined in the Shareholders Agreement) pursuant to the Shareholders Agreement.

        " Series G Preferred Stockholders " shall mean any holder of Company Series G Preferred Stock immediately prior to the Effective Time.

        " Series I Consideration " shall mean the aggregate value of the Company Series I Preferred Stock calculated based on the Aggregate Closing Consideration Value and in accordance with the Company's Organizational Documents and taking into account amounts necessary to make payments to Company Optionholders in accordance with Section 2.4 .

        " Series I Per Share Amount " shall mean the quotient of (a) the Series I Consideration divided by (b) the number of shares of Company Series I Preferred Stock outstanding immediately prior to the Effective Time.

        " Series I Per Share Cash Consideration " shall mean an amount in cash equal to the Series I Per Share Amount.

        " Series I Preferred Stockholders " shall mean any holder of Company Series I Preferred Stock immediately prior to the Effective Time.

        " Series J Preferred Stockholders " shall mean any holder of Company Series J Preferred Stock immediately prior to the Effective Time.

        " Series K Preferred Stockholders " shall mean any holder of Company Series K Preferred Stock immediately prior to the Effective Time.

        " Shareholders Agreement " means that certain Amended Investors' Rights and Stockholders Agreement of the Company, dated as of December 5, 2016, by and among the Company and each of the investors and stockholders party thereto.

        " Software " means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in Source Code or object code, (b) databases, data aggregation programs and search engine technologies, whether machine readable or otherwise, (c) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing and (d) all user documentation, including user manuals and training materials, relating to any of the foregoing.

        " Source Code " means computer software in a form that is readily suitable for review and edit by trained programmers, including related programmer comments and documentation embedded therein.

        " Specified Auditor Assistance " means (a) providing customary "comfort letters" (including customary "negative assurances") and assistance with the due diligence activities of Parent's Financing Sources and (b) providing customary consents to the inclusion of audit reports in any relevant Marketing Material or government filings.

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        " Stockholder " shall mean any holder of Company Capital Stock immediately prior to the Effective Time.

        " Straddle Period " shall mean any Tax period beginning before the Closing Date and ending after the Closing Date.

        " Subsidiary " shall mean, with respect to any Person of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity's gains or losses or shall be or control any managing director or general partner of such business entity (other than a corporation).

        " Tax " shall mean any and all taxes, including, without limitation, any net income, alternative or add-on minimum, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, license, registration, recording, documentary, conveyancing, gains, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit, custom duty or other tax, together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority responsible for the imposition of any such tax (United States (federal, state or local) or foreign).

        " Tax Return " shall mean any return, declaration, report, claim for refund, information return or statement relating to Taxes, including any schedule or attachment thereto and any amendment thereof.

        " Transaction Expenses " shall mean, to the extent not paid by the Company Group prior to the Closing, (a) all costs, fees and expenses payable to third parties (including all fees and disbursements of counsel, investment banks, financial advisors and accountants), incurred on or before the Closing and payable by any member of the Company Group in connection with the transactions contemplated by this Agreement and the Ancillary Agreements and the negotiation and preparation of this Agreement, the Ancillary Agreements, and the other documents required to effectuate the Closing, whether or not invoiced (including any such amounts required to be paid to any third party in connection with obtaining any consent, waiver or approval required to be obtained in connection with the consummation of the transactions); (b) the Series D/E Payment, (c) 50% of the premium of the R&W Insurance Policy, (d) 50% of the premium of the D&O Tail Policy, (e) all bonuses, severances or other payments or other forms of compensation or benefits that are created, accelerated, accrue or become payable by any member of the Company Group to any present or former director, stockholder, member, employee or consultant thereof as a result of the Closing or the transactions contemplated by this Agreement and the Ancillary Agreements, including, without limitation, the LTIP Payments and payments pursuant to the Deferred Compensation Plan, (e) any and all severance payments and benefits relating to a termination of employment occurring prior to the Closing, (f) all Taxes required to be paid by the Parent, any of its Subsidiaries or any member of the Company Group in connection with payments made under clause (e) hereof (except for costs, fees, severance payments, termination payments or other amounts incurred in connection with the Debt Financing or resulting from the termination of any contract, agreement, employment, service or other arrangement by Parent or its Affiliates after the Effective Time) and (g) the Expense Fund.

        " Treasury Regulations " shall mean the United States Treasury regulations promulgated under the Code.

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        " Unaccredited Consideration Value " shall mean the product of (a) the Common Per Share Amount multiplied by (b) the number of shares of Company Common Stock, Series G Preferred Stock, Series J Preferred Stock and Series K Preferred Stock outstanding immediately prior to the Effective Time not owned by Accredited Investors or Designated Nonaccredited Investors.

        " VDR " means the virtual data site entitled "Project Ranger" maintained by Ansarada.

        " Working Capital " shall mean, as of the Closing on the Closing Date, the excess of the total current assets of the Company Group over the total current liabilities of the Company Group, determined in accordance with the illustrative calculation of Working Capital set forth on Exhibit I attached hereto and in accordance with GAAP consistently applied using the same methodologies and principals as those used in the Company Group's audited financial statements for the year ended December 31, 2016; provided that the "Working Capital" shall exclude (a) Cash, (b) Indebtedness, (c) Transaction Expenses, (d) intercompany amounts due to/from, (e) costs, fees, expenses or other amounts incurred in connection with the Debt Financing and (f) all Tax assets, Tax liabilities and deferred Tax items.

        " Working Capital Target " shall mean negative $2,700,000.

        The following terms shall have the meanings defined for such terms in the Sections set forth below:

Defined Term
  Section
Accredited Investor Questionnaire   6.5
Accredited Investor Questionnaire Deadline   6.5
Additional Cash Amount   2.6(b)
Adjustment Escrow Account   2.8(a)
BBH Warrant Cash Consideration   2.5(b)
BBH QP Warrant Cash Consideration   2.5(c)
BBH Warrant Share Consideration   2.5(b)
BBH QP Warrant Share Consideration   2.5(c)
Agreement   Preamble
Book-Entry Shares   2.2(b)(ii)
Business Systems   4.15(d)
Cap   7.3(b)
Cardholder Data   4.15(f)
Certificate of Merger   1.2
Certificates   2.2(b)
Claim Certificate   7.4(a)
Closing   3.1
Closing Consideration Schedule   2.7
Closing Date   3.1
Closing Date Adjustment Escrow Amount   2.8(a)
Closing Date Indemnity Escrow Amount   2.8(b)
Closing Statement   2.9(a)
Company   Preamble
Company Intellectual Property   4.15(b)
Company Licensed Intellectual Property   4.15(b)
Company Registered Intellectual Property   4.15(a)
Company Written Consent   6.4(a)
Continuing Employee   6.20(a)
Contributor   4.15(c)
D&O Tail Policy   6.9(b)

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Defined Term
  Section
Debt Commitment Letter   6.17(c)
Debt Financing   6.17(c)
Deductible   7.3(a)
DGCL   Recitals
Dissenting Shares   2.3(a)
Earn Out   6.24
Effective Time   1.2
Environmental Laws   4.22
Escrow Agent   2.8
Escrow Agreement   2.8
Estimated Cash Amount   2.6(a)
Estimated Closing Cash   2.6(a)
Estimated Closing Certificate   2.6(a)
Estimated Closing Indebtedness   2.6(a)
Estimated Transaction Expenses   2.6(a)
Estimated Working Capital   2.6(a)
Excess Dissenting Share Payments   2.3(b)
Exchange Act   5.10
Existing Target Debt   6.16
Expense Fund   10.18(g)
Financial Statements   4.6(a)
Financing Sources   5.13
Financing Sources   6.17(c)
Fundamental Representations   7.1
Indemnified Party   7.4(a)
Indemnifying Party   7.4(a)
Indemnity Escrow Account   2.8(b)
Insurance Policies   4.20
Interim Period   6.1(a)
Latest Balance Sheet   4.6(a)
Leases   4.16(b)
Legal Request   6.23
Malicious Code   4.15(h)
Material Customer   4.23(a)
Merger   Recitals
Merger Sub   Premable
Non-US Plans   4.18(i)
Objection Notice   2.9(b)
Option Letter of Transmittal   6.7
Outside Date   9.1(b)
Parent   Preamble
Parent Indemnitees   7.2(a)
Parent Intellectual Property   5.15(a)
Parent Preferred Stock   5.2(a)
Parent SEC Reports   5.8
Paying Agent   2.2(a)
Payoff Amount   6.16
Payoff Letters   6.16
Pre-Closing Director   6.17(a)
Pre-Merger Communications   6.23

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Defined Term
  Section
Related Person   4.19
Releasees   6.12(a)
Releasors   6.12(a)
Rental Real Estate   4.16(b)
Representative Losses   10.18(f)
Special Escrow Account   2.8(c)
Special Escrow Amount   2.8(c)
Stock Letter of Transmittal   2.2(b)
Stockholder Indemnitees   7.2(b)
Stockholder Notice   6.4(b)
Stockholder Representative   Preamble
Surviving Corporation   1.1(a)
Tangible Assets   4.9
Tax Contest   6.8(e)(i)
Third-Party Claim   7.5(a)
Threshold Share Election   2.6(b)
Total Parent Shares   2.6(b)
Transfer Taxes   6.8(c)
WARN Act   4.17(f)

        10.2     Usage.     When a reference is made herein to a Section or Exhibit, such reference shall be to a Section of, or an Exhibit to, this Agreement unless otherwise indicated. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. Unless otherwise specified herein, (a) "or" shall be construed in the inclusive sense of "and/or"; (b) words (including capitalized terms defined herein) in the singular shall be construed to include the plural and vice versa, and words (including capitalized terms defined herein) of one gender shall be construed to include the other gender as the context requires; (c) the terms "hereof" and "herein" and words of similar import shall be construed to refer to this Agreement as a whole (including all the Exhibits and the Disclosure Letter) and not to any particular provision of this Agreement; (d) all references to "$" or dollars shall refer to United States Dollars; (e) "including" shall be deemed to mean "including, without limiting the generality of the foregoing" and (f) for the purposes of this Agreement, references to the term "delivered by the Company," "delivered to Parent," "furnished to Parent," "made available to Parent" or similar expressions shall mean that the Company has posted such materials to the VDR, in a manner that enables viewing of such materials by Parent and its representatives no later than 8:00 p.m. Eastern Time on the full calendar day immediately prior to the date of this Agreement.

        10.3     Assignment.     Neither this Agreement nor any of the rights or obligations hereunder may be assigned by the Company without the prior written consent of Parent. Parent and Merger Sub may, without the consent of the Company, assign all or any portion of their rights and obligations hereunder; provided, that, if such assignment by Parent or Merger Sub is made prior to the Closing, then such assignment shall require the prior written consent of the Company unless the assignee(s) is (are) an Affiliate(s) of Parent or Merger Sub; provided , furthe r, that such assignee(s) execute(s) a joinder to and agree(s) to be bound by this Agreement; and provided, further, that such assignment shall be at no cost (including additional Taxes) to the Company Equityholders. No such assignment shall release the assignor from any of its obligations hereunder.

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        10.4     Governing Law.     This Agreement (and any claim or controversy arising out of or relating to this Agreement) shall be governed by and construed in accordance with the domestic Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

        10.5     Consent to Jurisdiction.     Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Chancery Court of the State of Delaware, or Federal court of the United States of America sitting in Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each party hereto hereby irrevocably and unconditionally (a) agrees not to commence any such action or proceeding except in such courts; (b) agrees that any claim in respect of any such action or proceeding may be heard and determined in such Chancery Court of the State of Delaware or, to the extent permitted by law, in such Federal court; (c) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such Chancery Court of the State of Delaware or Federal court; and (d) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Chancery Court of the State of Delaware or Federal court. Each party hereto agrees that (i) this Agreement involves at least $100,000.00 and (ii) this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.9 .

        10.6     Waiver of Trial by Jury.     EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE ANCILLARY AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS; (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS; (C) IT MAKES SUCH WAIVERS VOLUNTARILY; AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.6 .

        10.7     Counterparts.     This Agreement may be executed in one or more counterparts (including by email and PDF), each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

        10.8     Headings.     The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to sections, paragraphs, exhibits, appendices and schedules will, unless otherwise provided, refer to sections and paragraphs hereof and exhibits, appendices and schedules attached hereto, all of which exhibits, appendices and schedules are incorporated herein by reference.

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        10.9     Notices.     All notices and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by electronic mail with a copy sent by another means specified herein; the Business Day after it is sent if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g. Federal Express); and five Business Days after the date mailed by certified or registered mail, postage prepaid, if sent by certified or registered mail, return receipt requested. In each case notice shall be sent to.

        If to the Company (prior to the Closing), addressed to:

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

        If to the Stockholder Representative, addressed to:

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        If to Parent Merger Sub or the Surviving Corporation, addressed to:

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

        If to BBH or BBH QP, addressed to:

or to such other place and with such other copies as either party may designate as to itself by written notice to the others.

        10.10     Amendments.     This Agreement may not be amended or modified except in an instrument in writing signed (if prior to the Closing) by the Company and Parent or (if after the Closing) by the Stockholder Representative and Parent. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. For the purposes of this Section 10.10 , any amendment, modification or waiver of this Agreement signed by the Stockholder Representative shall be binding upon and effective against the Stockholders whether or not they have signed such amendment, modification or waiver. Notwithstanding anything to the contrary contained herein, Sections 9.2 , 10.17 and 10.19 and 10.20 and this Section 10.10 (and any provision of this Agreement to the extent an amendment, modification, waiver or termination of such provision would modify the substance of Sections 9.2 , 10.17 and 10.19 and this Section 10.10 ) may not be amended, modified, waived or terminated in a manner that impacts or is adverse in any respect to any of the Financing Source Related Parties without the prior written consent of the Financing Sources.

        10.11     Severability.     If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated by this Agreement are fulfilled to the extent possible.

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        10.12     Entire Agreement.     This Agreement and the Ancillary Agreements, together with all exhibits, appendices and schedules (including the Disclosure Schedule), constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties hereto with respect to the subject matter hereof.

        10.13     Construction.     Each party hereto agrees that they have been represented by 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.

        10.14     No Personal Liability.     This Agreement and all documents, understandings and arrangements relating hereto and/or to the transactions contemplated hereby have been negotiated, executed and delivered on behalf of the parties hereto by their respective officers, directors, employees, members, partners, attorneys and/or agents in their representative capacities and not individually, and, except as set forth in this Agreement, no officer, director, employee, member, manager, partner, attorney, agent or shareholder of any party hereto shall be bound or held to any personal liability or responsibility in connection with the agreements, obligations and undertakings by the parties hereunder and/or under any documents, understandings and arrangements relating hereto and/or to the transactions contemplated hereby.

        10.15     Fees, Costs and Expenses.     Except as otherwise set forth in this Agreement, each of the parties shall bear all of its own fees, costs and expenses (including fees, costs and expenses of legal counsel or other representatives and consultants and appraisal fees, costs and expenses) incurred by such party hereto in connection with the negotiation of this Agreement and the Ancillary Agreements, the performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby.

        10.16     Waivers.     No purported waiver of any provision of this Agreement shall be binding upon any of the parties to this Agreement unless: (a) with respect to waivers by the Company on or prior to the Closing, the Company has duly executed and delivered to Parent a written instrument which states that it constitutes a waiver of one or more provisions of this Agreement; (b) with respect to waivers by the Stockholder Representative, the Stockholder Representative has duly executed and delivered to the Parent a written instrument which states that it constitutes a waiver of one or more provisions of this Agreement; (c) with respect to waivers by the Parent or Merger Sub on or prior to the Closing, Parent has duly executed and delivered to the Company a written instrument which states that it constitutes a waiver of one or more provisions of this Agreement; or (d) with respect to waivers by Parent or Merger Sub after to the Closing, Parent has duly executed and delivered to the Stockholder Representative a written instrument which states that it constitutes a waiver of one or more provisions of this Agreement. Any such waiver shall be effective only to the extent specifically set forth in such written instrument. Neither the exercise (from time to time and at any time) by a party of, nor the delay or failure (at any time or for any period of time) to exercise, any right, power or remedy shall constitute a waiver of the right to exercise, impair, limit or restrict the exercise of, such right, power or remedy or any other right, power or remedy at any time and from time to time thereafter. No waiver of any right, power or remedy of a party shall be deemed to be a waiver of any other right, power or remedy of such party or shall, except to the extent so waived, impair, limit or restrict the exercise of such right, power or remedy.

        10.17     No Third-Party Beneficiaries.     This Agreement and all of its conditions and provisions are for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any Person other than the parties hereto any rights or remedies of any nature whatsoever under or by reason of this Agreement or any provision hereof; provided , however , that (a) any Person that is not a party to this

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Agreement but, by the terms of Article VII , is entitled to indemnification and (b) with respect to Sections 9.2 , 10.10 , 10.19 and 10.20 and this Section 10.17 , the Financing Source Related Parties, shall be considered a third-party beneficiary of this Agreement, with full rights of enforcement as though such Person was a signatory to this Agreement.

        10.18     Appointment of the Stockholder Representative.     

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        10.19     Lender Limitations.     Notwithstanding anything to the contrary contained in this Agreement (but without limiting the following sentence), each of the parties hereto: (i) agrees, on behalf of itself and its Affiliates, that it will not bring or support any person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether at law or in equity, whether in contract or in tort or otherwise, against any of the Financing Source Related Parties in any way relating to this Agreement or the transactions contemplated hereby, including, but not limited to, any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, in any forum other than the federal or New York state courts located in the Borough of Manhattan within the City of New York; (ii) agrees, on behalf of itself and its Affiliates, that, except as specifically set forth in the Debt Commitment Letter, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the Financing Source Related Parties in any way relating to this Agreement or any of the transactions contemplated hereby, the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to principles or rules on conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction; and (iii) on behalf of itself and its Affiliates, hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in contract or in tort or otherwise) directly or indirectly arising out of or relating in any way to this Agreement or any of the transactions contemplated hereby, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby. Notwithstanding anything to the contrary contained in this Agreement, (a) the Company and its Subsidiaries, and its and their respective Affiliates, directors, officers, employees, agents, partners, managers, advisors, representatives, members and stockholders shall not have any rights and agree not to bring any claims or directly seek specific performance (other than, following the Closing, rights and claims pursuant to any definitive financing documents entered into with the Financing Sources in connection with the Debt Financing) against any Financing Source Related Party, in any way relating to this Agreement, the Debt Commitment Letter or the Debt Financing or in respect of any other document or any of the transactions contemplated hereby or thereby, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise, and (b) no Financing Source Related Party shall have any liability (whether in contract, in tort or otherwise) to the Company or any of its subsidiaries, or any of their respective Affiliates, directors, officers, employees, agents, partners, managers, members, advisors, representatives and stockholders (excluding, for the avoidance of doubt, from and after the Closing, liabilities to the Company and its subsidiaries pursuant to any definitive financing documents entered into with the Financing Sources in connection with the Debt Financing) for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise.

        10.20     Specific Enforcement.     The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that

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the parties hereto do not perform any provision of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties hereto acknowledge and agree that the parties hereto shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled in Law or in equity. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and 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 hereto seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with such order or injunction.

         [ S IGNATURE P AGE F OLLOWS ]

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        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on their respective behalf, by their respective officers thereunto duly authorized, all as of the day and year first set forth above.

    TELADOC, INC.

 

 

By:

 

/s/ JASON GOREVIC

        Name:   Jason Gorevic
        Title:   President and CEO

 

 

BAROLO ACQUISITION CORP.

 

 

By:

 

/s/ ADAM C. VANDERVOORT

        Name:   Adam C. Vandervoort
        Title:   Authorized Signatory

   

Signature Page to Merger Agreement


    BEST DOCTORS HOLDINGS, INC.

 

 

By:

 

/s/ PETER A. MCCLENNON

        Name:   Peter A. McClennon
        Title:   Chief Executive Officer

   

Signature Page to Merger Agreement


    SHAREHOLDER REPRESENTATIVE
SERVICES LLC,
solely in its capacity as the
Stockholder Representative

 

 

By:

 

/s/ SAM RIFFE

        Name:   Sam Riffe
        Title:   Executive Director

   

Signature Page to Merger Agreement


    BBH CAPITAL PARTNERS IV, L.P

 

 

By:

 

/s/ JEFFREY B. MESKIN

        Name:   Jeffrey B. Meskin
        Title:   Authorized Signatory

   

Signature Page to Merger Agreement


    BBH CAPITAL PARTNERS QP IV, L.P

 

 

By:

 

/s/ JEFFREY B. MESKIN

        Name:   Jeffrey B. Meskin
        Title:   Authorized Signatory

   

Signature Page to Merger Agreement




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AGREEMENT AND PLAN OF MERGER by and among BEST DOCTORS HOLDINGS, INC., TELADOC, INC., BAROLO ACQUISITION CORP., SHAREHOLDER REPRESENTATIVE SERVICES LLC, as Stockholder Representative BBH CAPITAL PARTNERS IV, L.P. , and BBH CAPITAL PARTNERS QP IV, L.P. Dated as of June 19, 2017
TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER
RECITALS
ARTICLE I. THE MERGER
ARTICLE II. EFFECT ON CAPITAL STOCK
ARTICLE III. CLOSING
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
ARTICLE VI. COVENANTS
ARTICLE VII. INDEMNIFICATION; REMEDIES
ARTICLE VIII. CONDITIONS TO CLOSING
ARTICLE IX. TERMINATION
ARTICLE X. MISCELLANEOUS

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Exhibit 99.1

LOGO

FOR IMMEDIATE RELEASE

Teladoc to Acquire Best Doctors to Provide a Comprehensive Virtual Healthcare Delivery Platform

Acquisition gives Teladoc an international footprint and significantly expands breadth of healthcare solutions

         PURCHASE, NY, June 19, 2017 —Teladoc, Inc. (NYSE: TDOC), the nation's first and largest telehealth platform, announced today that it has entered into a definitive agreement to acquire Best Doctors, the world's leading expert medical consultation company focused on improving health outcomes for the most complex, critical and costly medical issues. Teladoc is creating a new paradigm for how patients access care by delivering a powerful connected care platform—a single solution for addressing a complete spectrum of medical conditions, from non-critical, episodic needs to chronic, complicated medical conditions. By leveraging the proven portfolio of healthcare solutions from both Best Doctors and Teladoc, members will have one simple, virtual, patient-centric way to resolve their healthcare issues, improving outcomes and reducing costs.

        "Today is a big day for patients and the greater healthcare system. At Teladoc, our vision has always been to provide the central, trusted source for consumers to find resolution to the broadest array of healthcare needs, on their terms," said Teladoc CEO, Jason Gorevic. "Now with Best Doctors' network of world-renowned experts in over 450 specialties, global footprint, and exceptional analytic capabilities, we are taking a monumental step towards making that vision a reality."

        Best Doctors has redefined the standard for addressing high acuity, complex care cases with a patient-centric clinical model proven to drive better outcomes for hundreds of the most high-cost medical conditions. Using advancements in analytics, cognitive computing, and an award-winning patient-centric process, the company brings the brightest minds in medicine to provide answers to the most complex medical concerns for their millions of members. The Best Doctors global network consists of 50,000+ medical experts who are peer-rated in a Gallup-certified poll as the top 5% of physicians in more than 450 medical specialties. In every major region of the world, the suite of Best Doctors solutions plays an important role in population health management, with the ability to monitor, react and positively affect change.

        "By combining data and analytics with a focus on nothing but the highest standard for care, we've successfully created a better way for patients and their families across the globe to get resolution to the most life-changing medical conditions," said Best Doctors CEO, Peter McClennen, who will continue to lead Best Doctors as president of the new division of Teladoc. "Now aligned as one greater organization under Teladoc, the impact we can make together is tremendous, delivering a paradigm shift in care access that comes with a phenomenal patient experience, unprecedented outcomes and cost savings."

        This acquisition builds on Teladoc's successful track record of acquiring and integrating companies with common purpose, complementary capabilities, and access to new markets.

        Teladoc will marry its award-winning technology, industry-leading engagement capabilities, and robust, scalable platform with Best Doctors' world-renowned network of medical experts, analytics expertise, patient decision-support, and regional expertise on a global scale. The newly combined company offers a highly differentiated suite of virtual care delivery solutions for a broad range of market segments, spanning the full spectrum of employers to health plans and health systems. Furthermore, Teladoc will now develop and deploy global expansion plans, meeting a broader spectrum of care needs outside the U.S.


Additional Information

Transaction Summary

        This transaction is expected to close in July 2017 subject to regulatory approvals and customary closing conditions. Under the terms of the agreement, the purchase price consists of $375 million cash and $65 million of Teladoc common stock. Teladoc has secured committed financing from Jefferies Finance LLC and Jefferies Group LLC for $360 million, which combined with the company's cash on hand, will fund the entire cash portion of the transaction. Piper Jaffray & Co. and Jefferies LLC. acted as financial advisors to Teladoc on this transaction and Latham & Watkins LLP acted as Teladoc's legal advisor. William Blair acted as exclusive financial advisor to Best Doctors and Ropes & Gray LLP acted as Best Doctors' legal advisor.

Financial Reporting and Business Outlook

        Best Doctors generated 2016 revenue of $92.2 million, and generated $23.7 million of revenue for the first three months of 2017. Best Doctors is expected to generate in excess of $100 million in 2017 revenues. Best Doctors generated $5.6 million of net loss and approximately $6.5 million of Adjusted EBITDA in 2016 and $2.1 million of net income and $2.2 million of Adjusted EBITDA for the first three months of 2017.

Note: Results from Best Doctors reported net of divested businesses. Adjusted EBITDA is a non-GAAP measure. Because Best Doctors' calculation of this measure may differ from similar measures used by other companies, investors should be careful when comparing Best Doctors' non-GAAP financial measures to those of other companies. A reconciliation of GAAP to non-GAAP results has been provided in this press release below under the heading "Non-GAAP Financial Measures."

Management Conference Call

        Teladoc management will also provide additional details of the Best Doctors acquisition during a conference call today, Monday, June 19, at 5:30 p.m. Eastern Standard Time. Stockholders and interested participants may listen to a live broadcast of the conference call by dialing 877-201-0168 or 647-788-4901 for international callers, and referencing participant code 39358429 approximately 15 minutes prior to the call. A live webcast of the conference call and supplemental presentation materials will be available on the investor relations section of the company's website and an audio file of the call will also be archived for 90 days at ir.teladoc.com.

About Teladoc, Inc.

        Teladoc, Inc. (NYSE:TDOC) is the nation's first and largest telehealth platform. Recognized by MIT Technology Review as one of the "50 Smartest Companies," Teladoc is forging a new healthcare experience with an innovative portfolio of virtual care delivery solutions. Currently, Teladoc serves more than 7,500 clients—from payers to providers to employers—and more than 20 million members who connect within minutes to Teladoc's network of more than 3,100 board-certified, state-licensed


physicians and therapists, 24/7. Teladoc's services and solutions marry a highly engaging consumer experience with the latest in data & analytics, and a highly flexible technology platform. Teladoc has delivered more than 2.5 million medical visits for general medical, dermatology, counseling, psychiatry, sexual health, and tobacco cessation.

About Best Doctors

        Founded in 1989 by Harvard Medical School physicians, Best Doctors is the world's leading medical consultation company that connects individuals facing difficult diagnostic or medical treatment decisions with the best doctors, ranked by impartial peer review in over 450 subspecialties of medicine, to review their diagnosis and treatment plans. Best Doctors serves millions of members worldwide utilizing access to the brightest minds in medicine, analytics and technology to deliver improved health outcomes while reducing costs. A Best Doctors expert opinion led to a change or refinement of diagnosis in 37% of cases that the company reviewed, as well as a change or improvement of treatment plans in 75% of cases.

Media Contacts:
Courtney McLeod
Director of Public Relations, Teladoc
914-265-6789
cmcleod@teladoc.com

Maura Siefring
GCI Health for Teladoc
215-837-8450
Maura.Siefring@gcihealth.com

Investor Contact:
Jisoo Suh
Director of Investor Relations
914-265-6706
jsuh@teladoc.com

Cautionary Note Regarding Forward-Looking Statements

        This press release contains "forward-looking statements" within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995 concerning Teladoc, Best Doctors, the proposed acquisition of Best Doctors and other matters. Forward-looking statements can be identified by words such as: "anticipate," "intend," "plan," "believe," "project," "estimate," "expect," "may," "should," "will" and similar references to future periods. Examples of forward-looking statements include, among others, statements we make regarding the intended acquisition of Best Doctors, future revenues, future earnings, future numbers of members or clients, litigation outcomes, regulatory developments, market developments, new products and growth strategies, and the effects of any of the foregoing on our future results of operations or financial conditions.

        Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of the control of Teladoc and Best Doctors. Our actual results and financial condition may differ materially from those indicated in the forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking statements include, among others, the following: (i) risks related to the acquisition of Best Doctors, including failure to obtain applicable regulatory approvals in a timely manner or at all, integration risks, exposure to international operations and failure to achieve the anticipated benefits of the acquisition; (ii) changes in laws and regulations applicable to our business model; (iii) changes in


market conditions and receptivity to our services and offerings; (iv) results of litigation; (v) the loss of one or more key clients; and (vi) changes to our abilities to recruit and retain qualified providers into our network. For a detailed discussion of the risk factors that could affect our actual results, please refer to the risk factors identified in our SEC reports, including, but not limited to our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, as filed with the Securities and Exchange Commission.

        Any forward-looking statement made by us in this press release is based only on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.

Non-GAAP Financial Measures

        The following table reconciles Best Doctors' net income (loss) from continuing operations, net of disposed business, to EBITDA and Adjusted EBITDA for the periods presented:

 
  Twelve Months
Ended
December 31,
2016
  Three Months
Ended
March 31,
2017
 

Net income (loss) from continuing operations, net of disposed business(1)

  $ (5,606 )   2,079  

Add (deduct):

             

Interest expense (income), net(2)

    6,487     1,392  

Income tax provision (benefit)(3)

    415     151  

Depreciation expense(4)

    1,827     407  

Amortization expense

    1,256     325  

EBITDA

    4,380     4,355  

Stock-based compensation expense

    1,399     328  

Gain on sale of business

        (2,369 )

Change in fair value of warrant liability

    705     (82 )

Adjusted EBITDA

  $ 6,484     2,232  

(1)
Reflects elimination of divested business net income of $1,698 and $223 for the year ended December 31, 2016 and for the three months ended March 31, 2017, respectively.

(2)
Reflects elimination of the divested business interest expense of $2 for the year ended December 31, 2016.

(3)
Reflects elimination of the divested business income tax of $289 for the year ended December 31, 2016.

(4)
Reflects elimination of the divested business depreciation expense of $19 for the year ended December 31, 2016.

        To supplement the financial information presented in accordance with U.S. GAAP, Best Doctors uses EBITDA and Adjusted EBITDA, which are non-U.S. GAAP financial measures, to clarify and enhance an understanding of past performance.

        EBITDA consists of net income or loss from continuing operations before interest, taxes, depreciation and amortization.

        Adjusted EBITDA consists of net income or loss from continuing operations before interest, taxes, depreciation and amortization, stock-based compensation expense, gain on sale of business and change in fair value of warrant liability.

        Best Doctors believes that the presentation of these financial measures enhances an investor's understanding of its financial performance, and that making such adjustments provides investors with both meaningful information to understand its results of operations and the ability to analyze financial


and business trends on a period-to-period basis by excluding certain items that Best Doctors believes are not representative of its core business. Best Doctors uses certain financial measures for business planning purposes and in measuring its performance relative to that of its competitors. Best Doctors utilizes Adjusted EBITDA as the primary measure of its performance.

        Best Doctors believes both financial measures are commonly used by investors to evaluate its performance and that of its competitors. However, neither EBITDA nor Adjusted EBITDA should be considered as an alternative to net loss before taxes, net loss, loss per share or any other performance measures derived in accordance with U.S. GAAP as measures of performance. EBITDA and Adjusted EBITDA have important limitations as analytical tools and you should not consider them in isolation or as a substitute for analysis of Best Doctors' results as reported under U.S. GAAP. Some of these limitations are that:

        In addition, although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and both measures do not reflect any expenditures for such replacements. Other companies in Best Doctors' industry may calculate EBITDA and Adjusted EBITDA differently, limiting the usefulness of EBITDA and Adjusted EBITDA as comparative measures.

        Best Doctors compensates for these limitations by using EBITDA and Adjusted EBITDA along with other comparative tools, together with U.S. GAAP measurements, to assist in the evaluation of its operating performance. Such U.S. GAAP measurements include gross profit, net profit or loss from continuing operations and other performance measures.

        In evaluating these financial measures, you should be aware that in the future Best Doctors may incur expenses similar to those eliminated in this presentation. Best Doctors' presentation of EBITDA and Adjusted EBITDA should not be construed as an inference that Best Doctors' future results will be unaffected by unusual or nonrecurring items.

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Teladoc to Acquire Best Doctors to Provide a Comprehensive Virtual Healthcare Delivery Platform

Exhibit 99.2

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