Transaction Valuation(1)
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Amount of Filing Fee(2)
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$184,245,185
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$23,915.03
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(1)
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The calculation assumes the purchase of 18,904,312 outstanding shares (the “Shares”) of common stock, par value $0.001 per share, which includes 121,994 shares of restricted stock, at an offer price of $9.50 per Share. The transaction value also includes 1,466,398 Shares issuable pursuant to outstanding stock option grants with an exercise price of less than $9.50 per Share, which is calculated by (x) multiplying the offer price of $9.50 (less the exercise price per Share attributable to such stock option) by (y) the total number of Shares of common stock issuable upon exercise in full of such stock option. The calculation of the filing fee is based on information provided by GlobalSCAPE, Inc. as of July 28, 2020.
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(2)
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The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2020, issued August 23, 2019, by multiplying the transaction value by 0.0001298.
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.
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Amount Previously Paid: N/A
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Filing Party: N/A
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Form of Registration No.: N/A
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Date Filed: N/A
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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☒
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Third-party tender offer subject to Rule 14d-1.
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Issuer tender offer subject to Rule 13e-4.
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Going-private transaction subject to Rule 13e-3.
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Amendment to Schedule 13D under Rule 13d-2.
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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Item 1.
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Summary Term Sheet.
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Item 2.
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Subject Company Information.
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Item 3.
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Identity and Background of Filing Person.
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Item 4.
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Terms of the Transaction.
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Item 5.
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Past Contacts, Transactions, Negotiations and Agreements.
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Item 6.
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Purposes of the Transaction and Plans or Proposals.
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Item 7.
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Source and Amount of Funds or Other Consideration.
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Item 8.
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Interest in Securities of the Subject Company.
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Item 9.
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Persons/Assets, Retained, Employed, Compensated or Used.
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Item 10.
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Financial Statements.
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Item 11.
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Additional Information.
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Item 12.
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Exhibits.
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated July 31, 2020.
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(a)(1)(B)
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Form of Letter of Transmittal.
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.
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(a)(1)(D)
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Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(F)
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Summary Advertisement as published in the New York Times on July 31, 2020.
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(a)(5)(A)
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Press Release issued by the Company, Parent and Merger Sub on July 20, 2020 (incorporated by reference to Exhibit 99.3 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(a)(5)(B)
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Robert Alpert email to customers dated July 20, 2020 (incorporated by reference to Schedule 14D-9C of the Company filed with the Securities and Exchange Commission on July 21, 2020).
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(a)(5)(C)
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Robert Alpert email to partners dated July 20, 2020 (incorporated by reference to Schedule 14D-9C of the Company filed with the Securities and Exchange Commission on July 21, 2020).
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(b)(1)
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Amended and Restated Debt Commitment Letter, dated as of July 30, 2020, by and among HS Purchaser, LLC, Help/Systems Holdings, Inc., Jefferies Finance LLC, Hudson Post Credit Opportunities Aggregator (2019-2), LLC, Hudson Post Credit Opportunities Aggregator II, LLC, Golub Capital LLC and Ares Management LLC.
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(d)(1)
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Agreement and Plan of Merger, dated as of July 19, 2020, among the Company, Merger Sub, Parent and, solely with respect to certain sections therein, HS Purchaser, LLC and Help/Systems Holdings, Inc. (incorporated by reference to Exhibit 2.1 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(d)(2)
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Confidentiality Agreement, dated May 2, 2020, as amended on June 2, 2020, between the Company and Parent (incorporated by reference to Exhibit (e)(13) to Schedule 14D-9 of the Company filed with the Securities and Exchange Commission on July 31, 2020).
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(d)(3)
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Equity Commitment Letter, dated as of July 19, 2020, from HS Purchaser, LLC and Help/Systems Holdings, Inc. to Parent.
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(d)(4)
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Limited Guarantee, dated as of July 19, 2020, delivered by HS Midco, Inc. in favor of the Company (incorporated by reference to Exhibit 99.1 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(d)(5)
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Form of Support Agreement, dated as of July 19, 2020, by and among Parent, Merger Sub and certain Stockholders listed therein (incorporated by reference to Exhibit 99.2 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(g)
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None.
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(h)
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None.
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Item 13.
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Information Required by Schedule 13E-3.
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GRAIL MERGER SUB, INC.
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By:
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/s/ Kyle Hofmann
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Name:
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Kyle Hofmann
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Title:
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Secretary
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HELP/SYSTEMS, LLC
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By:
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/s/ Kyle Hofmann
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Name:
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Kyle Hofmann
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Title:
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General Counsel
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Exhibit No.
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Description
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Offer to Purchase, dated July 31, 2020.
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Form of Letter of Transmittal.
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Form of Notice of Guaranteed Delivery.
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Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Summary Advertisement as published in the New York Times on July 31, 2020.
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Press Release issued by the Company, Parent and Merger Sub on July 20, 2020 (incorporated by reference to Exhibit 99.3 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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Robert Alpert email to customers dated July 20, 2020 (incorporated by reference to Schedule 14D-9C of the Company filed with the Securities and Exchange Commission on July 21, 2020).
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Robert Alpert email to partners dated July 20, 2020 (incorporated by reference to Schedule 14D-9C of the Company filed with the Securities and Exchange Commission on July 21, 2020).
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Amended and Restated Debt Commitment Letter, dated as of July 30, 2020, by and among HS Purchaser, LLC, Help/Systems Holdings, Inc., Jefferies Finance LLC, Hudson Post Credit Opportunities Aggregator (2019-2), LLC, Hudson Post Credit Opportunities Aggregator II, LLC, Golub Capital LLC and Ares Management LLC.
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Agreement and Plan of Merger, dated as of July 19, 2020, among the Company, Merger Sub, Parent and, solely with respect to certain sections therein, HS Purchaser, LLC and Help/Systems Holdings, Inc. (incorporated by reference to Exhibit 2.1 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(d)(2)
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Confidentiality Agreement, dated May 2, 2020, as amended on June 2, 2020, between the Company and Parent (incorporated by reference to Exhibit (e)(13) to Schedule 14D-9 of the Company filed with the Securities and Exchange Commission on July 31, 2020).
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Equity Commitment Letter, dated as of July 19, 2020, from HS Purchaser, LLC and Help/Systems Holdings, Inc. to Parent.
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Limited Guarantee, dated as of July 19, 2020, delivered by HS Midco, Inc. in favor of the Company (incorporated by reference to Exhibit 99.1 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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Form of Support Agreement, dated as of July 19, 2020, by and among Parent, Merger Sub and certain Stockholders listed therein (incorporated by reference to Exhibit 99.2 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on July 20, 2020).
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(g)
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None.
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(h)
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None.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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there will have been validly tendered and not validly withdrawn prior to one (1) minute after 11:59 p.m., New York City time, on August 27, 2020 (the “Expiration Time” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the Merger Agreement, the “Expiration Date”) that number of Shares which, considered together with all other Shares, if any, beneficially owned by Parent and its affiliates, but excluding, for the avoidance of doubt, any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, represent one more than 50% of the sum of (x) the total number of Shares outstanding at the expiration of the Offer, plus (y) the aggregate number of Shares then issuable to holders of options to purchase shares of Company Common Stock (“Company Options”) from which the Company has received notices of exercise prior to the expiration of the Offer (and as to which such Shares have not yet been issued to such exercising holders of Company Options) (the “Minimum Tender Condition”);
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that the applicable waiting period (or any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”) relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger under the HSR Act will have expired or otherwise been terminated;
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that no governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
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that since the date of the Merger Agreement, there will not have occurred any change, event, violation, inaccuracy, effect or circumstance that, individually or taken together with all other effects that exist or have occurred, (A) has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, financial condition or results of operations of the Company, taken as a whole; or (B) would reasonably be expected to prevent or materially impair or materially delay the consummation of the Merger (“Company Material Adverse Effect”);
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that (A) except as provided in clauses (B) and (C) below, the representations and warranties of the Company contained in the Merger Agreement will have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representations and warranties expressly speak as of an earlier date, in which case such representation and warranty will not have been true and correct as of such earlier date), except where the failure of any such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (B) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will have been true and correct in all material respects as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will not have been true and correct in all material respects as of such earlier date); and (C) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will not have been true and correct as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time, except for de minimis inaccuracies; provided, that solely for purposes of clause (C) above, if one or more
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that the Company will not have failed to perform or comply with, in all material respects, its obligations required to be performed or complied with by it under the Merger Agreement; and
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that the Merger Agreement will not have been terminated in accordance with its terms.
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Securities Sought
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All outstanding shares of common stock (the “Shares”), par value $0.001 per share (the “Company Common Stock”), of GlobalSCAPE, Inc., a Delaware corporation (the “Company”).
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Price Offered Per Share
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$9.50 per Share, subject to any required withholding of taxes, net to the seller in cash without interest (the “Offer Price”).
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Scheduled Expiration of Offer
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One minute after 11:59 p.m., New York City time, on August 27, 2020 (the “Expiration Time” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the Merger Agreement, the “Expiration Date”), unless the Offer is extended or terminated. See Section 1— “Terms of the Offer.”
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Merger Sub
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Grail Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of Help/Systems, LLC, a Delaware limited liability company (“Parent” or “HelpSystems”).
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The Company’s Board of Directors Recommendation
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The board of directors of the Company (the “Company Board”) has unanimously recommended that the stockholders of the Company tender their Shares in the Offer.
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there shall have been validly tendered and not validly withdrawn prior to the expiration of the Offer that number of Shares which, considered together with all other Shares, if any, beneficially owned by Parent and its affiliates, but excluding, for the avoidance of doubt, any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, represent one more than 50% of the sum of (x) the total number of Shares outstanding at the expiration of the Offer, plus (y) the aggregate number of Shares then issuable to holders of options to purchase shares of Company Common Stock (“Company Options”) from which the Company has received notices of exercise prior to the expiration of the Offer (and as to which such Shares have not yet been issued to such exercising holders of Company Options) (the “Minimum Tender Condition”);
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that the applicable waiting period (or any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”) relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger under the HSR Act will have expired or otherwise been terminated;
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that no governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
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that since the date of the Merger Agreement, there shall not have occurred any change, event, violation, inaccuracy, effect or circumstance that, individually or taken together with all other effects that exist or have occurred, (A) has had or would reasonably be expected to have a material adverse effect on the
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that (A) except as provided in clauses (B) and (C) below, the representations and warranties of the Company contained in the Merger Agreement will have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representations and warranties expressly speak as of an earlier date, in which case such representation and warranty will not have been true and correct as of such earlier date), except where the failure of any such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (B) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will have been true and correct in all material respects as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will not have been true and correct in all material respects as of such earlier date); and (C) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will not have been true and correct as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time, except for de minimis inaccuracies; provided, that solely for purposes of clause (C) above, if one or more inaccuracies in the representations and warranties set forth in certain sections of the Merger Agreement would cause damages or diminution in value to Parent or Merger Sub of $100,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (C) of this paragraph;
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that the Company will not have failed to perform or comply with, in all material respects, its obligations required to be performed or complied with by it under the Merger Agreement; and
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that the Merger Agreement will not have been terminated in accordance with its terms.
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Merger Sub was organized solely in connection with the Offer and the Merger and, prior to the expiration of the Offer, will not carry on any activities other than in connection with the Offer and the Merger;
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the consideration offered in the Offer consists solely of cash;
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the Offer is being made for all outstanding Shares;
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Parent and Merger Sub have received equity financing and debt financing commitments in respect of funds sufficient to purchase all Shares tendered pursuant to the Offer; and
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the Offer will not be subject to any financing condition. See Section 9— “Source and Amount of Funds.”
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determined that it is in the best interests of the Company and its stockholders, and approved and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement (collectively, the “Transactions”);
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approved the execution and delivery by Company of the Merger Agreement, the performance by the Company of its covenants and other obligations in the Merger Agreement, and the consummation of the Transactions upon the terms and subject to the conditions set forth in the Merger Agreement; and recommended that the Company stockholders accept the Offer and tender their Shares pursuant to the Offer; and
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resolved that the Merger will be effected under Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”).
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there shall have been validly tendered and not validly withdrawn prior to the expiration of the Offer that number of Shares which, considered together with all other Shares, if any, beneficially owned by Parent and its affiliates, but excluding, for the avoidance of doubt, any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, represent one more than 50% of the sum of (x) the total number of Shares outstanding at the expiration of the Offer, plus (y) the aggregate number of Shares then issuable to holders of options to purchase shares of Company Common Stock (“Company Options”) from which the Company has received notices of exercise prior to the expiration of the Offer (and as to which such Shares have not yet been issued to such exercising holders of Company Options) (the “Minimum Tender Condition”);
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that the applicable waiting period (or any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”) relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger under the HSR Act shall have expired or otherwise been terminated;
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that no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
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that since the date of the Merger Agreement, there shall not have occurred any change, event, violation, inaccuracy, effect or circumstance that, individually or taken together with all other effects that exist or have occurred, (A) has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, financial condition or results of operations of the acquired entities, taken as a whole; or (B) would reasonably be expected to prevent or materially impair or materially delay the consummation of the Merger (“Company Material Adverse Effect”);
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that (A) except as provided in clauses (B) and (C) below, the representations and warranties of the Company contained in the Merger Agreement will have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representations and warranties expressly speak as of an earlier date, in which case such representation and warranty will not have been true and correct as of such earlier date), except where
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that the Company shall not have failed to perform or comply with, in all material respects, its obligations required to be performed or complied with by it under the Merger Agreement; and
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that the Merger Agreement shall not have been terminated in accordance with its terms.
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the tender is made by or through an eligible institution;
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a properly completed and duly executed “Notice of Guaranteed Delivery,” substantially in the form made available by Merger Sub, is received prior to the Expiration Time by the Depositary as provided below; and
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the Certificates (or a book-entry confirmation) evidencing all tendered Shares, in proper form for transfer, in each case together with the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message), and any other documents required by the Letter of Transmittal are received by the Depositary within two (2) NYSE American trading days after the date of execution of such Notice of Guaranteed Delivery.
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bank or other financial institution;
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a tax-exempt organization;
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a retirement plan or other tax-deferred account;
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a partnership, an S corporation or other pass-through or disregarded entity (or an investor in a partnership, S corporation or other pass-through or disregarded entity);
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an insurance company;
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a mutual fund;
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a dealer or broker in stocks and securities, or currencies;
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a trader in securities that elects mark-to-market treatment;
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a regulated investment company;
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a real estate investment trust;
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a person who acquired Shares through the exercise of employee stock options, through a tax qualified retirement plan or otherwise as compensation for services;
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a United States Holder (as defined below) that has a functional currency other than the United States dollar;
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a person that holds the Shares as part of a hedge, straddle, conversion or other integrated or risk reduction transaction, or that is deemed to sell Shares pursuant to the constructive sale provisions of the Code;
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a United States expatriate and certain former citizens or long-term residents of the United States;
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any holder of Shares that entered into a Support Agreement as part of the transactions described in this Offer to Purchase;
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any person who owns, or is deemed to own, more than 5% of Company common stock (except to the extent specifically set forth below);
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any holder of Shares that exercises its appraisal rights pursuant to Section 262 of the DGCL.
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an individual who is a citizen or resident of the United States;
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a corporation (or any other entity or arrangement treated as a corporation for United States federal income tax purposes) organized in or under the laws of the United States or any state thereof or the District of Columbia;
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an estate, the income of which is subject to United States federal income taxation regardless of its source; or
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a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and one or more United States persons have the authority to control all substantial decisions of the trust or (ii) the trust has validly elected to be treated as a “United States person” under applicable Treasury regulations.
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certain former citizens or long-term residents of the United States;
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controlled foreign corporations;
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passive foreign investment companies;
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corporations that accumulate earnings to avoid United States federal income tax; and
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investors in pass-through entities that are subject to special treatment under the Code.
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the gain is effectively connected with a trade or business of such non-United States Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment maintained by such non-United States Holder in the United States), in which case such gain generally will be subject to United States federal income tax at rates generally applicable to United States persons, and, if the non-United States Holder is a corporation, will be included in the corporation’s effectively connected earnings and profits and generally subject to a branch profits tax at a rate of 30% (or a lower rate under an applicable income tax treaty);
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such non-United States Holder is an individual who was present in the United States in the aggregate for 183 days or more in the taxable year of the exchange and certain other conditions are met, in which case such holder will be subject to tax at a flat rate of 30% (or such lower rate as may be specified under an applicable income tax treaty) on any gain from the exchange of the Shares, net of applicable United States-source losses from sales or exchanges of other capital assets recognized by the holder during the taxable year; or
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the Company is or has been a “United States real property holding corporation” as such term is defined in Section 897(c) of the Code (“USRPHC”), at any time within the shorter of the five-year period preceding the Merger or such non-United States Holder’s holding period with respect to the applicable shares of common stock and such non-United States Holder owns directly, or is deemed to own pursuant to attribution rules, more than 5% of the Company’s common stock at any time during the relevant period, in which case such gain will be subject to United States federal income tax at rates generally applicable to United States persons (as described in the first bullet point above), except that the branch profits tax will not apply. Non-United States Holders that actually or constructively own more than 5% of the Company’s common stock should consult their tax advisors regarding the process for requesting documentation from the Company to establish whether the Company is a USRPHC.
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High
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Low
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Year Ended December 31, 2018:
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First Quarter
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$3.99
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$3.27
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Second Quarter
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$4.22
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$3.47
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Third Quarter
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$4.15
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$3.20
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Fourth Quarter
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$4.75
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$3.77
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Year Ended December 31, 2019:
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First Quarter
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$7.00
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$4.39
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Second Quarter
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$10.98
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$6.25
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Third Quarter
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$14.25
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$8.20
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Fourth Quarter
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$14.14
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$9.10
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Year Ending December 31, 2020:
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First Quarter
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$12.35
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$5.21
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Second Quarter
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$11.06
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$6.39
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Third Quarter (through July 30, 2020)
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$9.84
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$7.60
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consummation of the Offer in accordance with the Merger Agreement in all material respects and in accordance with the terms of the Merger Agreement (without giving effect to any amendments, supplements or other modifications to, or consents, waivers or request granted or made under the Merger Agreement that, in the aggregate, are materially adverse to the incremental lenders or the bookrunners without the prior consent of the bookrunners);
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subject to the conditionality provisions, the specified acquisition agreement representations and the specified representations will be true and correct in all material respects;
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at the time of expiration of the Offer and since the date of the Merger Agreement, there will not have occurred any change, event, effect or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;
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required financial statements as listed in the Debt Commitment Letter will delivered;
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the refinancing of certain existing indebtedness of the Company shall have been consummated substantially concurrently with the initial funding of the incremental facilities;
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the initial incremental lenders will have received the necessary documentation and other information about Borrowers as is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations as well as a beneficial ownership certificate in relation to Borrowers;
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all fees required to be paid on the Closing Date pursuant to the term sheets and the fee letters will have been received; and
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the commitment parties will have received a borrowing notice, a solvency certificate, from the chief financial officer, chief accounting officer, vice president of accounting or other financial officer of Borrowers, customary legal opinions of counsel to Borrowers and the guarantors, and other customary corporate resolutions, secretary’s certificates, evidence of existence and good standings, and customary officer’s certificates.
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Merger Sub will have previously accepted for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer;
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The waiting periods (and any extensions thereof), if any, applicable to the Merger pursuant to the HSR Act will have expired or otherwise been terminated, or all requisite consents pursuant thereto will have been obtained; and
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No temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger will be in effect, no action will have been taken by any governmental authority of competent jurisdiction, and no law will have been enacted, entered, enforced or deemed applicable to the Merger, that, in each case, prohibits, makes illegal or enjoins the consummation of the Merger.
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changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions in the global economy generally (except to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other participants in the industries in which the Acquired Entities conduct business);
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changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or region in the world, including (A) changes in interest rates or credit ratings in the United States or any other country; (B) changes in exchange rates for the currencies of any country; or (C) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities)
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changes in conditions in the industries in which the Acquired Entities conduct business (except to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other participants operating in the industries in which the Acquired Entities conduct business);
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changes in regulatory, legislative or political conditions in the United States or any other country or region in the world (except to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other participants operating in the industries in which the Acquired Entities conduct business);
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any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism or military actions (including any escalation or general worsening of any such hostilities, acts of war, sabotage, terrorism or military actions) in the United States or any other country or region in the world (except to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other participants operating in the industries in which the Acquired Entities conduct business);
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earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions, the continuation or escalation of the COVID-19 pandemic (including precautionary or emergency measures, recommendations or orders taken or issued by any Person in response to the COVID-19 pandemic) and other force majeure events in the United States or any other country or region in the world (except to the extent that such Effect has had a disproportionate adverse effect on the Company relative to other participants operating in the industries in which the Acquired Entities conduct business);
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any Effect to the extent directly resulting from the public announcement of the Merger Agreement or the pendency of the Merger, including the impact thereof on the relationships, contractual or otherwise, of the Acquired Entities with employees, suppliers, customers, partners, vendors or any other third person;
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•
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the compliance by any party with the terms of the Merger Agreement, including any action taken or refrained from being taken pursuant to or in accordance with the Merger Agreement;
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any action taken or refrained from being taken, in each case to which Parent has expressly approved, consented to or requested in writing (including via email) following the date of the Merger Agreement (provided, in each such case, that the Company has notified Parent that the taking or refraining from taking any such action would, or would reasonably be expected to result in a Company Material Adverse Effect);
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changes or proposed changes in GAAP or other accounting standards or law (or the enforcement or interpretation of any of the foregoing) or changes in the regulatory accounting requirements applicable to any industry in which the Acquired Entities operate;
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•
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changes in the price or trading volume of Shares or indebtedness of the Company, in each case in and of itself (it being understood that any cause of such change may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);
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any transaction litigation or other legal proceeding threatened, made or brought by any of the current or former Company stockholders (on their own behalf or on behalf of the Company) against the Company, any of its executive officers or other employees or any member of the Company Board arising out of the Merger or any other transaction contemplated by the Merger Agreement; and
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any failure, in and of itself, by the Acquired Entities to meet (A) any public estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period; or (B) any internal budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that the cause of such failure may be
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•
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due organization, valid existence, good standing and authority and qualification to conduct business with respect to the Company and its subsidiaries;
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•
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the Company’s corporate power and authority to enter into and perform the Merger Agreement, the enforceability of the Merger Agreement and the absence of conflicts with laws, the Company’s organizational documents and the Company’s contracts;
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•
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the organizational documents of the Company;
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•
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the capital structure of the Company;
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•
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the accuracy and required filings of the Company’s SEC filings and financial statements;
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the inapplicability of anti-takeover statutes to the Merger;
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the conduct of the business of the Company and its subsidiaries in the ordinary course since March 31, 2020, and the absence of any Company Material Adverse Effect since March 31, 2020;
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real property leased or subleased by the Company and its subsidiaries;
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trademarks, patents, copyrights and other intellectual property matters;
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the absence of any required consent of holders of voting interests in the Company;
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the absence of any conflict or violation of any organizational documents, existing contracts, applicable laws to the Company or its subsidiaries or the resulting creation of any lien upon the Company’s assets due to the performance of the Merger Agreement;
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required consents, approvals and regulatory filings in connection with the Merger Agreement and performance thereof;
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the absence of any undisclosed exchangeable security, option, warrant or other right convertible into common stock of the Company;
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the absence of any contract relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any of the Company’s securities;
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the Company’s financial statements;
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the Company’s disclosure controls and procedures;
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the Company’s internal accounting controls and procedures;
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the Company’s and its indebtedness;
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the absence of specified undisclosed liabilities;
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the validity and binding nature of specified categories of the Company’s material contracts, and any notices with respect to termination or intent not to renew those material contracts therefrom;
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environmental matters;
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tax matters;
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employee benefit plans;
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labor matters;
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the Company’s compliance with laws and possession of necessary permits;
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litigation matters;
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insurance matters;
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absence of any transactions, relations or understandings between the Company or any of its subsidiaries and any affiliate or related person;
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payment of fees to brokers in connection with the Merger Agreement;
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export controls matters and anti-corruption compliance matters; and
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•
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the exclusivity and terms of the representations and warranties made by Parent and Merger Sub.
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•
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due organization, good standing and authority and qualification to conduct business with respect to Parent and Merger Sub and availability of these documents;
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Parent’s and Merger Sub’s corporate authority to enter into and perform the Merger Agreement, the enforceability of the Merger Agreement and the absence of conflicts with laws, Parent’s or Merger Sub’s organizational documents and Parent’s or Merger Sub’s contracts;
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the absence of any conflict or violation of any organizational documents, existing contracts, applicable laws or the resulting creation of any lien upon Parent or Merger Sub’s assets due to the performance of the Merger Agreement;
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required consents and regulatory filings in connection with the Merger Agreement;
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litigation matters;
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ownership of capital stock of the Company;
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payment of fees to brokers in connection with the Merger Agreement;
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the absence of any required consent of holders of voting interests in Parent;
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•
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matters with respect to Parent’s financing and sufficiency of funds, including pursuant to the Equity Commitment Letter and Debt Commitment Letter;
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•
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the absence of agreements between Parent and members of the Company Board or the Company management;
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•
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the absence of any stockholder or management arrangements related to the Merger; and
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•
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the exclusivity and terms of the representations and warranties made by the Company.
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use its respective reasonable best efforts to maintain its existence in good standing pursuant to applicable law;
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subject to the restrictions and exceptions set forth in the Merger Agreement, conduct its business and operations only in the ordinary course of business consistent with past practice (which includes changes in its business practice adopted prior to the date hereof to address and adapt to the COVID-19 pandemic); and
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use its commercially reasonable efforts to (A) preserve intact its material assets, properties, contracts and business organizations; (B) keep available the services of its current directors, officers, and employees; and (C) preserve the current relationships with material customers, suppliers, distributors, lessors, licensors, licensees, creditors, contractors and other persons with whom the Company or any of the Company subsidiaries has business relations.
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declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock or otherwise) in respect of any shares of its capital stock (other than consolidated cash management transfers among the Acquired Entities, the net effect of which does not change the consolidated cash balance of the Acquired Entities), or repurchase, redeem or otherwise reacquire any of its shares of capital stock or other securities or rights, warrants or options to acquire any such shares or securities of the Company, other than: (i) the acquisition by the Company of Shares in connection with the surrender of Shares by holders of Company Options in order to pay the exercise price of the Company Options; (ii) the withholding of Shares to satisfy tax obligations with respect to awards granted pursuant to the Company Equity Plans; and (iii) the acquisition by the Company of Company Options or Company Restricted Stock in accordance with their terms in effect as of the date of the Merger Agreement in connection with the forfeiture of such awards;
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sell, issue, grant, authorize the issuance or grant of, or amend the terms of any: (i) capital stock or other security; (ii) option, restricted stock unit, restricted stock award or other equity-based compensation award (whether payable in cash, stock or otherwise), call, warrant or right to acquire any capital stock or other security; or (iii) instrument convertible into or exchangeable for any capital stock or other security, in each case whether issued pursuant to an Company Equity Plan or not (except that the Company may issue Shares upon the valid exercise of Company Options outstanding as of the date of the Merger Agreement);
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split, divide, subdivide, combine, consolidate or reclassify any shares of its capital stock or other securities, or issue or authorize the issuance of any securities in lieu of or in substitution for shares of its capital stock or other securities;
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except as otherwise stated in the Merger Agreement, amend or waive any of its rights under, or accelerate the vesting under, any provision of any of the Company’s stock option or equity compensation plans (including the Company Equity Plans), any provision of any agreement evidencing any outstanding Company Options or otherwise modify any of the terms of any outstanding equity-based compensation award or other security or any related contract;
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commence any offering or otherwise issue or grant any awards under the Company Equity Plans;
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abandon, allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or dispose of any intellectual property, or grant any right or license to any intellectual property other than in the ordinary course of business consistent with past practice;
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adopt, approve or implement any stockholder rights plan (or similar plan commonly referred to as a “poison pill”), tax benefits preservation plan (or similar plan) or related agreement;
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(A) amend or permit the adoption of any amendment to its organizational documents, or acquire or enter into an agreement to acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or person or division thereof, (B) make any loans, advances, or capital contributions to or investments in any person; (C) issue or sell any debt securities or calls, options,
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acquire any material equity interest or other material interest in any other entity;
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•
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make any capital expenditure, except that the Acquired Entities may make capital expenditures that, when added to all other capital expenditures made on behalf of the Acquired Entities during the during the period commencing with the execution and delivery of the Merger Agreement and continuing until the earlier to occur of the (1) termination of the Merger Agreement pursuant its terms and (2) Effective Time, do not exceed (x) $100,000 in the aggregate, or (y) $50,000 individually;
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other than in the ordinary course of business, enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any material contract or any other contract that, if in effect as of the date of the Merger Agreement, would constitute a material contract;
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(i) acquire, lease or license any right or other asset from any other person; (ii) sell or otherwise dispose of, or lease or license, any right or other asset to any other person; or (iii) waive or relinquish any right, except in each case for rights or other assets to be acquired, leased, licensed or disposed of in the ordinary course of business and consistent with past practice;
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enter into any contract to purchase or sell any interest in real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify, violate or terminate any of the terms of any Company lease;
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(i) incur, assume, suffer or modify the terms of any indebtedness or issue any debt securities, except (A) short-term debt incurred to fund operations of the business in the ordinary course of business consistent with past practice; and (B) revolving indebtedness incurred pursuant to the Credit Agreement to fund operations of the business in the ordinary course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; or (iii) mortgage, pledge or otherwise encumber any assets, tangible or intangible, or create or suffer to exist any lien thereon (other than permitted liens);
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except as required by applicable law or GAAP, and other than in the ordinary course of business, write off as uncollectible, or establish any extraordinary reserve with respect to, any material account receivable or other indebtedness;
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make any pledge of any of its assets or otherwise permit any of its assets to become subject to any liens (other than permitted liens), except as such pledges and liens relate to immaterial assets made in the ordinary course of business and consistent with past practices;
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(i) adopt, establish or enter into any Company Benefit Plan; (ii) except as otherwise stated in the Merger Agreement or as required by applicable Laws, cause or permit any Company Benefit Plan to be amended in any material respect or terminated, or waive any rights under, or permit the acceleration of vesting under any provision of any Company Benefit Plan; (iii) make any contribution to any Company Benefit Plan, other than contributions required by applicable laws, the terms of such Company Benefit Plans as in effect on the date hereof, or that are made in the ordinary course of business consistent with past practices; or (iv) pay any bonus or make any profit-sharing or similar payment to, or materially increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, or grant any rights to receive severance, termination, retention or tax gross up compensation or benefits to, any of its current or former directors, officers, employees, or contingent workers except in an aggregate amount not to exceed $200,000;
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(i) hire any employee at the level of Vice President or above; (ii) hire any employee with an annual base salary in excess of $125,000; (iii) promote any employee to a level of Vice President or above; or (iv) terminate any employee at the level of Vice President or above (except for “cause”);
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change any of its pricing policies, product return policies, product maintenance policies, service policies, product modification or upgrade policies, personnel policies or other business policies in a manner that is material to the business of the Acquired Entities;
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change any of its methods of accounting or accounting practices or internal controls (including internal controls over financial reporting) in any material respect, in each case except for (A) any such change required by a change in GAAP or applicable law;
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except as otherwise required by applicable laws, (i) prepare or file any income or other material tax return or make any tax election, in each case, that is inconsistent with past practices; (ii) settle or otherwise compromise any claim, notice, audit report or assessment relating to any material amount of tax or assessment, enter into any closing agreement or similar agreement relating to any material amount of tax or assessment, or otherwise settle any dispute relating to any material amount of tax; (iii) request any ruling or similar guidance with respect to material taxes; (iv) consent to an extension or waiver of the statutory limitation period applicable to a claim or assessment in respect of any material tax; or (v) file an amended tax return that may materially increase the taxes payable by the Acquired Entities;
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enter into any transaction with any of its affiliates (other than the Company and any Company subsidiary), excluding any employment, compensation or similar arrangements otherwise permitted pursuant to the Merger Agreement;
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enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar contract with respect to any joint venture, strategic partnership or alliance;
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enter into any new line of business;
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enter into any pay or performance guarantees or agreements to indemnify any other person other than in the ordinary course of business consistent with past practice or under which none of the Acquired Entities will have any obligations following the Effective Time;
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terminate or permit any governmental authorization to lapse, other than in accordance with the terms and regular expiration of any governmental authorization, or fail to apply on a timely basis for any renewal of any renewable governmental authorization, except to the extent such termination, lapse or failure to apply for renewal would otherwise have been permitted to occur in the ordinary course of business consistent with past practice;
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except in connection with actions permitted by the Merger Agreement, take any action to exempt any Person from, or make any acquisition of securities of the Company by any person not subject to, any state takeover statute or similar statute or regulation that applies to Company with respect to an Acquisition Proposal (as defined below) or otherwise, including the restrictions on “business combinations” set forth in Section 203 of the DGCL, except, in each case, for Parent, Merger Sub or any of their respective subsidiaries or affiliates, or the Merger; or
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agree or commit to take any of the actions described in the Merger Agreement.
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solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal;
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furnish to any person (other than Parent, Merger Sub or any of their respective designees) any non-public information relating to the Company or afford to any person or their representatives (in their capacity as such) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company (other than Parent, Merger Sub or any of their respective designees), in any such case in connection with any Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or the making of any proposal that could reasonably be expected to lead to an Acquisition Proposal;
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participate, or engage in discussions or negotiations, with any person with respect to an Acquisition Proposal or with respect to any inquiries from third persons relating to the making of an Acquisition Proposal (other than only informing such persons of the provisions contained in the Merger Agreement);
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•
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approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal;
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authorize, resolve or commit to do any of the foregoing.
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(1)
|
any direct or indirect purchase or other acquisition by any person or Group (as defined pursuant to Section 13(d) of the Exchange Act), whether from the Company or any other person, of securities representing more than 20% of the total outstanding voting power of the Company after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any person or Group that, if consummated in accordance with its terms, would result in such person or Group beneficially owning more than 20% of the total outstanding voting power of the Company after giving effect to the consummation of such tender offer or exchange offer;
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(2)
|
any direct or indirect purchase (including by way of a merger, consolidation, business combination, joint venture, exclusive license, security interest, recapitalization, reorganization, liquidation, dissolution or other transaction) or other acquisition by any person or Group of assets constituting or accounting for more than 20% of the revenue, net income or consolidated assets of the Company and each of the subsidiaries of the Company, taken as a whole;
|
(3)
|
any merger, amalgamation, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company (or any of the Company subsidiaries whose business accounts for more than 25% of the revenue, net income or consolidated assets of the Company and the Company subsidiaries, taken as a whole), where the stockholders of the Company (or such subsidiary) prior to the transaction will not own, directly or indirectly, at least 80% of the equity interests in the surviving or resulting entity of such transaction; or
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(4)
|
any combination of the foregoing.
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•
|
withhold, withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, the Company Board Recommendation in a manner adverse to Parent;
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•
|
adopt, approve, endorse, recommend or otherwise declare advisable an Acquisition Proposal;
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•
|
fail to publicly reaffirm the Company Board Recommendation within ten (10) business days of the occurrence of a material event or development and after Parent so requests in writing; or
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•
|
take or fail to take any formal action or make or fail to make any recommendation in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen”
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•
|
the Company has provided prior written notice to Parent at least three (3) business days in advance to the effect that the Company Board (or a committee thereof) has (A) received a bona fide, written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate the Merger Agreement, which notice will specify the reasons for such Company Board Recommendation Change or termination, including the identity of the Person or Group making such Acquisition Proposal, the material terms and conditions of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal; and certain written notice requirements; or
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•
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prior to effecting such Company Board Recommendation Change or termination, the Company and its representatives, until 5:00 p.m., Eastern time on the last day of the required three (3) business days, have (1) negotiated with Parent and its representatives in good faith (to the extent that Parent desires to negotiate) to make such adjustments to the terms and conditions of the Merger Agreement to enable the Company Board to not make a Company Board Recommendation Change or terminate the Merger Agreement; and (2) permitted Parent and its representatives to make a presentation to the Company Board (or a committee thereof) regarding the Merger Agreement and any adjustments with respect thereto (to the extent that Parent requests to make such a presentation).
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the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable law;
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•
|
the Company has otherwise complied in all material respects with its obligations pursuant to the Merger Agreement with respect to such Acquisition Proposal;
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•
|
(i) the Company has provided prior written notice to Parent at least three (3) business days in advance (the “Notice Period”) which notice shall state that the Company Board (or a committee thereof) has (A) received a bona fide, written Acquisition Proposal that has not been withdrawn; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (C) resolved to effect a Company Board Recommendation Change or to terminate the Merger Agreement according to the terms therein, which notice will specify the reasons for such Company Board Recommendation Change or termination, including the identity of the person or group making such Acquisition Proposal, the material terms and conditions of such Acquisition Proposal and include copies of all relevant documents relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its representatives, until 5:00 p.m., Eastern time, on the last day of the Notice Period,
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•
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participating (and causing senior management and representatives of the Company to participate) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and otherwise cooperating with the marketing efforts for any of the debt financing (including direct contact between senior management and the other representatives of the Company, on the one hand, and the actual and potential financing sources, on the other hand);
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•
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assisting Parent and the financing sources with the timely preparation of customary rating agency presentations, bank information memoranda, lender presentations and similar documents required in connection with the debt financing and identifying any portion of the information provided by the Company and set forth in any of the foregoing that would constitute material non-public information;
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•
|
solely with respect to financial information and data derived from the Company’s historical books and records, assisting Parent with the preparation of pro forma financial information and pro forma financial statements to the extent required by the financing sources, it being agreed that the Company will not be required to provide any information or assistance relating to (A) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing; (B) any post-closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into such pro forma financial information or pro forma financial statements; or (C) any financial information related to Parent or any of its subsidiaries or any adjustments that are not directly related to the acquisition of the Company by Parent;
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•
|
assisting Parent in connection with the preparation and registration of (but not executing, to the extent any such documents or arrangements would be effective prior to the closing), other than any authorization letters described in the Merger Agreement, any pledge and security documents, supplemental indentures, currency or interest hedging arrangements and other definitive financing agreements or documents (including any related schedules, annexes and exhibits thereto) as may be reasonably requested by Parent or the financing sources (including using reasonable best efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the debt financing and accountants’ comfort letters, in each case as reasonably requested by Parent), and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the debt financing, it being understood that such documents will not be recorded or take effect until the Effective Time;
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•
|
furnishing Parent, Merger Sub and the financing sources, prior to the Closing Date, with (A) the Company financial statements; (B) an unaudited consolidated balance sheet of the acquired entities and the related unaudited consolidated statements of operations, statements of comprehensive loss, statements of stockholders’ equity and statements of cash flows of the acquired entities;
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•
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cooperating with Parent to obtain customary and reasonable corporate and facilities consents, landlord waivers, non-invasive environmental assessments, surveys and title insurance as reasonably requested by Parent in order to comply with the reasonable requirements of the financing sources, including in connection with any sale-and leaseback agreements or arrangements to be effected at or after the closing;
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•
|
delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the closing the principal of and interest on, and all other indebtedness outstanding pursuant to the credit agreement;
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•
|
providing authorization letters to the financing sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the financing sources that the public versions of such documents, if any, do not include material non-public information about the Company or the Company subsidiaries or securities;
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•
|
taking all corporate and other actions, subject to the occurrence of the closing, reasonably requested by Parent to permit the consummation of the debt financing (including distributing the proceeds of the debt financing, if any, obtained by any of the subsidiaries of the Company to the Surviving Corporation); and
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•
|
furnishing Parent and the financing sources at least three (3) business days prior to the closing with (A) all documentation and other information about the Company and the Company subsidiaries as is reasonably requested by Parent at least seven (7) business days prior to closing, in accordance with the requirements of the financing sources, relating to applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001 and (B) certifications regarding beneficial ownership required by 31 C.F.R. § 1010.230 to the extent Parent has requested at least seven (7) business days prior to closing.
|
•
|
cause certain conditions set forth in the Merger to be satisfied;
|
•
|
seek to obtain all consents, waivers, approvals, orders and make all registrations, declarations and filings with governmental authorities, in each case that are necessary or advisable to consummate the Merger; and
|
•
|
seek to obtain all consents, waivers and approvals and deliver all notifications, in each case pursuant to any material contracts in connection with the Merger Agreement and the consummation of the Merger so as to seek to maintain and preserve the benefits to the Surviving Corporation of such material contracts as of and following the consummation of the Merger.
|
•
|
by mutual written agreement of Parent and the Company;
|
•
|
by either Parent or the Company:
|
•
|
if (i) any permanent injunction or other judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger is in effect or any action has been taken by any governmental authority of competent jurisdiction, that, in each case, prohibits, makes illegal or enjoins the consummation of the Offer or the Merger and has become final and non-appealable; or (ii) any law is enacted, entered, enforced or deemed applicable to the Offer or the Merger that prohibits, makes illegal or enjoins the consummation of the Offer or the Merger, except that the right to terminate the Merger
|
•
|
if the Offer has been terminated in accordance with the terms of the Merger Agreement without Merger Sub having purchased any Shares tendered pursuant to the Offer by 11:59 p.m. Eastern time, on January 19, 2021 (such time and date, as it may be extended, the “Termination Date”); except that if as of the Termination Date all conditions to the Merger Agreement are satisfied (other than those conditions that by their terms are to be satisfied at the closing, each of which is capable of being satisfied at the closing) or waived (where permissible pursuant to applicable law), other than the conditions set forth in certain sections of the Merger Agreement, either Parent or the Company, by written notice to the other, may extend the Termination Date to 11:59 p.m., Eastern time, on January 31, 2021, it being understood that the right to terminate the Merger Agreement pursuant to the relevant section will not be available to (i) Parent if the Company has the right to terminate the Merger Agreement pursuant to the relevant section; and (ii) any party whose action or failure to act (which action or failure to act constitutes a breach by such party of the Merger Agreement) has been the primary cause of, or primarily resulted in, either (A) the failure to satisfy the conditions to the obligations of the terminating party to consummate the Merger prior to the Termination Date; or (B) the failure of the Effective Time to have occurred prior to the Termination Date; or
|
•
|
if (i) the Acceptance Time shall not have occurred on or before the Termination Date or (ii) the Offer shall have expired or been terminated in accordance with its terms without Merger Sub having purchased any Shares pursuant thereto; provided, that the right to terminate the Merger Agreement pursuant to that section shall not be available to any party whose failure to fulfill in any material respect any of its obligations under the Merger Agreement has been the primary cause of the event specified in either of the foregoing first or second clauses.
|
•
|
By Parent:
|
•
|
if (i) the Company has breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in the Merger Agreement, which breach or failure to perform would result in the failure of a condition set forth in the Merger Agreement, except that if such breach or failure to perform is capable of being cured by the Termination Date, Parent will not be entitled to terminate the Merger Agreement prior to the delivery by Parent to the Company of written notice of such breach or failure to perform, delivered at least thirty (30) days prior to such termination, stating Parent’s intention to terminate the Merger Agreement and the basis for such termination, it being understood that Parent will not be entitled to terminate the Merger Agreement if such breach or failure to perform has been cured prior to termination; provided, that Parent shall not have the right to terminate the Merger Agreement pursuant to the terms therein if Parent or Merger Sub is then in breach of any of their respective representations, warranties or covenants under the Merger Agreement so as to cause the conditions set forth in the Merger Agreement not to be satisfied; or
|
•
|
if at any time the Company Board (or a committee thereof) has effected a Company Board Recommendation Change.
|
•
|
By the Company:
|
•
|
if Parent or Merger Sub has breached or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained in the Merger Agreement, which breach or failure to perform would result in a failure of a condition set forth in the Merger Agreement, except that if such breach or failure to perform is capable of being cured by the Termination Date, the Company will not be entitled to terminate the Merger Agreement prior to the delivery by the Company to Parent of written notice of such breach or failure to perform, delivered at least thirty (30) days prior to such termination, stating the Company’s intention to terminate the Merger Agreement as described in this paragraph and the basis for such termination, it being understood that the Company will not be entitled to terminate the Merger Agreement if such breach or failure to perform has been cured prior to termination; provided, that
|
•
|
if (i) the Company has received a Superior Proposal; (ii) the Company Board (or a committee thereof) has authorized the Company to enter into an Alternative Acquisition Agreement to consummate the Acquisition Transaction contemplated by that Superior Proposal; (iii) the Company pays, or causes to be paid, to Parent or its designee the Company Termination Fee (as defined below); and (iv) the Company has complied in all material respects with the Merger Agreement with respect to such Superior Proposal; or
|
•
|
if (i) all of the conditions set forth in the applicable sections the Merger Agreement have been and continue to be satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing, each of which is capable of being satisfied at the closing); (ii) Parent and Merger Sub fail to consummate the Merger on the date upon which Parent is required to consummate the Merger; (iii) the Company has irrevocably notified Parent in writing that (A) it is ready, willing and able to consummate the closing; and (B) all conditions set forth in the applicable section of the Merger Agreement have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the closing) or that the Company is willing to waive any unsatisfied conditions set forth in the applicable of the Merger Agreement; (iv) the Company has given Parent written notice at least three (3) business days prior to such termination stating the Company’s intention to terminate the Merger Agreement if Parent and Merger Sub fail to consummate the Merger on the date required in the Merger Agreement; and (v) Parent and Merger Sub fail to consummate the Merger by the three (3) business day period and the date required for consummation.
|
•
|
if (A) the Merger Agreement is validly terminated pursuant to the Merger Agreement; (B) the conditions set forth in the Merger Agreement have been satisfied or are capable of being satisfied and the conditions set forth in Merger Agreement would be satisfied if the date of such termination was the Closing Date; (C) following the execution and delivery of the Merger Agreement and prior to the termination of the Merger Agreement pursuant to Merger Agreement, as applicable, an Acquisition Proposal for an Acquisition Transaction has been publicly announced or publicly disclosed and not withdrawn or otherwise abandoned that contemplates a per share price for the acquisition of the Shares that is higher than the Merger Consideration; and (D) within one year of the termination of the Merger Agreement, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction and such Acquisition Transaction is subsequently consummated, then the Company will, concurrently with the consummation of such Acquisition Transaction, pay or cause to be paid to Parent or its designee an amount equal to the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. For purposes of the provisions described in this paragraph, all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.”
|
•
|
if (i) the Merger Agreement is validly terminated by (A) by Parent or the Company if the Offer has been expired or terminated in accordance with the terms of the Merger Agreement and the Offer
|
•
|
if the Merger Agreement is validly terminated by Parent because of a Company Board Recommendation Change, then the Company must within two (2) business days following such termination pay or cause to be paid to Parent or its designee the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.
|
•
|
if the Merger Agreement is validly terminated because the Company received a Superior Proposal, then the Company must concurrently with such termination pay or cause to be paid to Parent or its designee the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.
|
•
|
if the Merger Agreement is terminated by the Company at any time prior to the Acceptance Time because the (i) the Company has received a Superior Proposal; (ii) the Company Board (or a committee thereof) has authorized the Company to enter into a binding alternative acquisition agreement reflecting the key terms of the Acquisition Transaction contemplated by that Superior Proposal and such key terms are sufficient without any additional terms or conditions to constitute a Superior Proposal; (iii) the Company pays, or causes to be paid, to Parent or its designee the Company Termination Fee; and (iv) the Company has complied in all material respects with its non-solicitation obligations and its obligations with respect to such Superior Proposal, then the Company must concurrently with such termination pay or cause to be paid to Parent or its designee the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent; provided, that if such termination occurs prior to the expiration of the No-Shop Period, then the Company Termination Fee shall mean an amount in cash equal to $3,685,000.00.
|
•
|
the Minimum Tender Condition will not have been satisfied;
|
•
|
the applicable waiting period (or any extension thereof) under the HSR Act relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger under the HSR Act shall not have expired or otherwise been terminated;
|
•
|
any governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
|
•
|
since the date of the Merger Agreement, there will have occurred any change, event, violation, inaccuracy, effect or circumstance that, individually or taken together with all other effects that exist or have occurred, (A) has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, financial condition or results of operations of the acquired entities, taken as a whole; or (B) would constitute a Company Material Adverse Effect;
|
•
|
(A) except as provided in clauses (B) and (C) below, the representations and warranties of the Company contained in the Merger Agreement will not have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representations and warranties expressly speak as of an earlier date, in which case such representation and warranty will not have been true and correct as of such earlier date), except where the failure of any such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (B) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will have been true and correct in all material respects as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will not have been true and correct in all material respects as of such earlier date); and (C) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will not have been true and correct as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time, except for de minimis inaccuracies; provided, that solely for purposes of clause (C) above, if one or more inaccuracies in the representations and warranties set forth in certain sections of the Merger Agreement would cause damages or diminution in value to Parent or Merger Sub of $100,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (C) of this paragraph;
|
•
|
the Company will have failed to perform or comply with, in all material respects, its obligations required to be performed or complied with by it under the Merger Agreement; or
|
•
|
the Merger Agreement will have been terminated in accordance with its terms.
|
|
| |
Help/Systems, LLC
Grail Merger Sub, Inc. |
|
| |
|
|
| |
July 31, 2020
|
1.
|
Executive Officers of Parent.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Kate Bolseth
|
| |
Chief Executive Officer of Parent; Chief Executive Officer and Director of Merger Sub; Manager of HS Topco; Chief Executive Officer and Director of HS Holdings
|
| |
Ms. Bolseth has served as the Chief Executive Officer of Parent since July 2019. From November 2018 to July 2019, Ms. Bolseth served as the Chief Operating Officer of Parent. Prior to that, Ms. Bolseth served as a General Manager of Parent.
|
Jim Cassens
|
| |
President of Parent; President of Merger Sub; Manager of HS Topco; President of HS Holdings
|
| |
Mr. Cassens has served as the President of Parent since 2019. From 2015 to 2019, Mr. Cassens served as the Executive Vice President of Mergers & Acquisitions for Parent.
|
Chris Heim
|
| |
Executive Chairman of Parent; Manager of HS Topco; Chief Executive Officer and President of Guarantor; Secretary of HS Purchaser
|
| |
Mr. Heim has served as an Executive Chairman of Parent since July 2019. Prior to that, he served as the Chief Executive Officer of Parent from December 2014 to July 2019. Since January 2020 Mr. Heim is the Executive Chairman of 2ndWave Software LLC (“2ndWave”) and Executive Director of HGGC, LLC (“HGGC”).
|
Kyle Hofmann
|
| |
General Counsel and Secretary of Parent; Secretary of Merger Sub; Secretary of HS Holdings
|
| |
Mr. Hofmann has served as the General Counsel and Secretary of Parent since June 2019. Prior to that, Mr. Hofmann served as Senior Counsel for iBasis, Inc.
|
Matthew Reck
|
| |
Chief Financial Officer, Vice President and Treasurer of Parent; Chief Financial Officer and Director of Merger Sub; Chief Financial Officer, Vice President, Treasurer, and Director of HS Holdings
|
| |
Mr. Reck has served as the Chief Financial Officer, Vice President and Treasurer of Parent since January 2020. Prior to that, Mr. Reck served as the Chief Financial Officer of Digital River, Inc. (“Digital River”) from 2018 to 2019, Vice President of Finance and Corporate Development of Digital River from 2017 to 2018, and Senior Director of Corporate Development and Treasurer of Digital River from 2016 to 2017.
|
2.
|
Directors and Executive Officers of Merger Sub.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Kate Bolseth
|
| |
Chief Executive Officer of Parent; Chief Executive Officer and Director of Merger Sub; Manager of HS Topco; Chief Executive Officer and Director of HS Holdings
|
| |
Ms. Bolseth has served as the Chief Executive Officer of Parent since July 2019. From November 2018 to July 2019, Ms. Bolseth served as the Chief Operating Officer of Parent. Prior to that, Ms. Bolseth served as a General Manager of Parent.
|
Jim Cassens
|
| |
President of Parent; President of Merger Sub; Manager of HS Topco; President of HS Holdings
|
| |
Mr. Cassens has served as the President of Parent since 2019. From 2015 to 2019, Mr. Cassens served as the Executive Vice President of Mergers & Acquisitions for Parent.
|
Kyle Hofmann
|
| |
General Counsel and Secretary of Parent; Secretary of Merger Sub; Secretary of HS Holdings
|
| |
Mr. Hofmann has served as the General Counsel and Secretary of Parent since June 2019. Prior to that, Mr. Hofmann served as Senior Counsel for iBasis, Inc.
|
Matthew Reck
|
| |
Chief Financial Officer, Vice President and Treasurer of Parent; Chief Financial Officer and Director of Merger Sub; Chief Financial Officer, Vice President, Treasurer, and Director of HS Holdings
|
| |
Mr. Reck has served as the Chief Financial Officer, Vice President and Treasurer of Parent since January 2020. Prior to that, Mr. Reck served as the Chief Financial Officer of Digital River from 2018 to 2019, Vice President of Finance and Corporate Development of Digital River from 2017 to 2018, and Senior Director of Corporate Development and Treasurer of Digital River from 2016 to 2017.
|
3.
|
Managers of HS Topco.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
John Block
|
| |
Manager of HS Topco; Director of Guarantor
|
| |
Mr. Block serves as a Partner at HGGC. Mr. Block has been employed at HGGC since 2010.
|
Kate Bolseth
|
| |
Chief Executive Officer of Parent; Chief Executive Officer and Director of Merger Sub; Manager of HS Topco; Chief Executive Officer and Director of HS Holdings
|
| |
Ms. Bolseth has served as the Chief Executive Officer of Parent since July 2019. From November 2018 to July 2019, Ms. Bolseth served as the Chief Operating Officer of Parent. Prior to that, Ms. Bolseth served as a General Manager of Parent.
|
Jim Cassens
|
| |
President of Parent; President of Merger Sub; Manager of HS Topco; President of HS Holdings
|
| |
Mr. Cassens has served as the President of Parent since 2019. From 2015 to 2019, Mr. Cassens served as the Executive Vice President of Mergers & Acquisitions for Parent.
|
Chris Heim
|
| |
Executive Chairman of Parent; Manager of HS Topco; Chief Executive Officer and President of Guarantor; Secretary of HS Purchaser
|
| |
Mr. Heim has served as an Executive Chairman of Parent since July 2019. Prior to that, he served as the Chief Executive Officer of Parent from December 2014 to July 2019. Since January 2020 Mr. Heim is the Executive Chairman of 2ndWave and Executive Director of HGGC.
|
Mike Libert
|
| |
Manager of HS Topco; Director of Guarantor; Vice President of HS Purchaser
|
| |
Mr. Libert serves as a Senior Vice President at TA Associates, Inc. (“TA Associates”) and has been employed by TA Associates since 2011.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Hiren Mankodi
|
| |
Manager of HS Topco
|
| |
Mr. Mankodi has been a Managing Director of Charlesbank Capital Partners since October 2018. From April 2016 to September 2018, he was employed by Pamplona Capital Partners as a Managing Director. Prior to that, he was employed by Audax Group as a Managing Director.
|
Jim Ryan
|
| |
Manager of HS Topco
|
| |
Mr. Ryan has served as the President and Chief Executive Officer of Flexera Software LLC (“Flexera”) since January 2016. Prior to that, he served as the Chief Operating Officer of Flexera.
|
Harry Taylor
|
| |
Manager of HS Topco; Director of Guarantor; Chief Executive Officer and President of HS Purchaser
|
| |
Mr. Taylor is a Managing Director of TA Associates. Mr. Taylor has been employed by TA Associates since 2005.
|
Jon Steven Young
|
| |
Manager of HS Topco
|
| |
Mr. Young is the President and Co-Founder of HGGC. Mr. Young co-founded HGGC in 2007 and serves as an Investment Committee member for funds affiliated with HGGC. Mr. Young’s current and past board representation includes serving as Chairman of the Board of Idera, 4over, AutoAlert, Dealer-FX, Integrity, Serena Software, Innovative Interfaces, hybris and Sunquest. Mr. Young also serves or previously served on the boards of AMI, BIG, Denodo, HelpSystems, Mi9, Nutraceutical, RPX, Davies Group, Dynata, FPX, hybris, MyWebGrocer, and Sunquest. Mr. Young is a director on the boards of the Capital Impact Foundation, Workday Foundation and Forever Young Foundation, which Mr. Young founded and chairs. In addition, Mr. Young is currently the broadcast host (and former International Spokesperson) for the Children’s Miracle Network.
|
4.
|
Directors and Executive Officers of Guarantor.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
John Block
|
| |
Manager of HS Topco; Director of Guarantor
|
| |
Mr. Block serves as a Partner at HGGC. Mr. Block has been employed at HGGC since 2010.
|
Chris Heim
|
| |
Executive Chairman of Parent; Manager of HS Topco; Chief Executive Officer and President of Guarantor; Secretary of HS Purchaser
|
| |
Mr. Heim has served as an Executive Chairman of Parent since July 2019. Prior to that, he served as the Chief Executive Officer of Parent from December 2014 to July 2019. Since January 2020 Mr. Heim is the Executive Chairman of 2ndWave and Executive Director of HGGC.
|
Mike Libert
|
| |
Manager of HS Topco; Director of Guarantor; Vice President of HS Purchaser
|
| |
Mr. Libert serves as a Senior Vice President at TA Associates, Inc. and has been employed by TA Associates since 2011.
|
Daniel Mayleben
|
| |
Treasurer and Secretary of Guarantor; Treasurer of HS Purchaser
|
| |
Mr. Mayleben is the Chief Executive Officer of 2ndWave and has been a director of Parent since January 2020. Prior to being a director of the Parent, he served as the Chief Financial Officer of Parent from December 2014 to January 2020.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Harry Taylor
|
| |
Manager of HS Topco; Director of Guarantor; Chief Executive Officer and President of HS Purchaser
|
| |
Mr. Taylor is a Managing Director of TA Associates. Mr. Taylor has been employed by TA Associates since 2005.
|
5.
|
Executive Officers of HS Purchaser.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Chris Heim
|
| |
Executive Chairman of Parent; Manager of HS Topco; Chief Executive Officer and President of Guarantor; Secretary of HS Purchaser
|
| |
Mr. Heim has served as an Executive Chairman of Parent since July 2019. Prior to that, he served as the Chief Executive Officer of Parent from December 2014 to July 2019. Since January 2020 Mr. Heim is the Executive Chairman of 2ndWave and Executive Director of HGGC.
|
Mike Libert
|
| |
Manager of HS Topco; Director of Guarantor; Vice President of HS Purchaser
|
| |
Mr. Libert serves as a Senior Vice President at TA Associates, Inc. and has been employed by TA Associates since 2011.
|
Daniel Mayleben
|
| |
Treasurer and Secretary of Guarantor; Treasurer of HS Purchaser
|
| |
Mr. Mayleben is the Chief Executive Officer of 2ndWave and has been a director of Parent since January 2020. Prior to being a director of the Parent, he served as the Chief Financial Officer of Parent from December 2014 to January 2020.
|
Harry Taylor
|
| |
Manager of HS Topco; Director of Guarantor; Chief Executive Officer and President of HS Purchaser
|
| |
Mr. Taylor is a Managing Director of TA Associates. Mr. Taylor has been employed by TA Associates since 2005.
|
6.
|
Directors and Executive Officers of HS Holdings.
|
Name
|
| |
Position
|
| |
Present Principal Occupation or Employment;
Material Positions Held During the Past Five Years |
Kate Bolseth
|
| |
Chief Executive Officer of Parent; Chief Executive Officer and Director of Merger Sub; Manager of HS Topco; Chief Executive Officer and Director of HS Holdings
|
| |
Ms. Bolseth has served as the Chief Executive Officer of Parent since July 2019. From November 2018 to July 2019, Ms. Bolseth served as the Chief Operating Officer of Parent. Prior to that, Ms. Bolseth served as a General Manager of Parent.
|
Jim Cassens
|
| |
President of Parent; President of Merger Sub; Manager of HS Topco; President of HS Holdings
|
| |
Mr. Cassens has served as the President of Parent since 2019. From 2015 to 2019, Mr. Cassens served as the Executive Vice President of Mergers & Acquisitions for Parent.
|
Kyle Hofmann
|
| |
General Counsel and Secretary of Parent; Secretary of Merger Sub; Secretary of HS Holdings
|
| |
Mr. Hofmann has served as the General Counsel and Secretary of Parent since June 2019. Prior to that, Mr. Hofmann served as Senior Counsel for iBasis, Inc.
|
Matthew Reck
|
| |
Chief Financial Officer, Vice President and Treasurer of Parent; Chief Financial Officer and Director of Merger Sub; Chief Financial Officer, Vice President, Treasurer, and Director of HS Holdings
|
| |
Mr. Reck has served as the Chief Financial Officer, Vice President and Treasurer of Parent since January 2020. Prior to that, Mr. Reck served as the Chief Financial Officer of Digital River from 2018 to 2019, Vice President of Finance and Corporate Development of Digital River from 2017 to 2018, and Senior Director of Corporate Development and Treasurer of Digital River from 2016 to 2017.
|
If delivering by hand, express mail, courier,
or other expedited service: |
| |
By mail:
|
|
| |
|
American Stock Transfer & Trust Co, LLC
|
| |
American Stock Transfer & Trust Co, LLC
|
Operations Center
|
| |
Operations Center
|
Attn: Reorganization Department
|
| |
Attn: Reorganization Department
|
6201 15th Avenue
|
| |
6201 15th Avenue
|
Brooklyn, New York 11219
|
| |
Brooklyn, New York 11219
|
|
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
|
If delivering by hand, express mail, courier,
or other expedited service: |
| |
By mail:
|
|
| |
|
American Stock Transfer & Trust Co., LLC
|
| |
American Stock Transfer & Trust Co., LLC
|
Operations Center
Attn: Reorganization Department |
| |
Operations Center
Attn: Reorganization Department |
6201 15th Avenue
|
| |
6201 15th Avenue
|
Brooklyn, New York 11219
|
| |
Brooklyn, New York 11219
|
(1)
|
If shares are held in book-entry form or held electronically through the Direct Registration System at the transfer agent you must indicate the number of Shares you are tendering.
|
(2)
|
Unless otherwise indicated, all Shares represented by Share Certificates held electronically through the Direct Registration System at the transfer agent or book-entry position will be deemed to have been tendered. See Instruction 4.
|
Name:
|
| |
|
(Please Print)
|
|||
|
| |
|
|
|||
Address:
|
| |
|
|
|||
|
|||
|
|||
(Also Complete IRS Form W-9
Included Herein or an Applicable IRS Form W-8) |
Name
|
| |
|
(Please Print)
|
|||
|
|||
Address:
|
| |
|
|
|||
|
|||
|
|||
(Also Complete IRS Form W-9
Included Herein or an Applicable IRS Form W-8) |
|
Sign Here:
|
Sign Here:
|
Signature(s) of Holder(s) of Shares (HOLDERS MUST SIGN ON THE LINE ABOVE)
|
|
Dated: , 2020
|
Name(s):
|
| |
|
(Please Print)
|
|||
|
| |
|
Capacity (full title)
|
|||
(See Instruction 5):
|
| |
|
|
|||
(Include Zip Code)
|
Address:
|
| |
|
|
Area Code and Telephone No.
|
| |
|
NOTE:
|
FAILURE TO COMPLETE AND RETURN THE IRS FORM W-9 INCLUDED IN THIS LETTER OF TRANSMITTAL OR AN IRS FORM W-8, AS APPLICABLE, MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE INSTRUCTIONS ENCLOSED WITH THE IRS FORM W-9 INCLUDED IN THIS LETTER OF TRANSMITTAL FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE “APPLIED FOR” IN THE SPACE FOR THE TIN ON THE IRS FORM W-9. FOR FURTHER INFORMATION, PLEASE CONTACT YOUR TAX ADVISOR OR THE IRS.
|
|
| |
|
Signature
|
| |
Date
|
|
|||
|
If delivering by hand, express mail, courier,
or other expedited service: |
| |
By mail:
|
|
| |
|
American Stock Transfer & Trust Co., LLC
|
| |
American Stock Transfer & Trust Co., LLC
|
Operations Center
Attn: Reorganization Department |
| |
Operations Center
Attn: Reorganization Department |
6201 15th Avenue
|
| |
6201 15th Avenue
|
Brooklyn, New York 11219
|
| |
Brooklyn, New York 11219
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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If delivering by hand, express mail, courier,
or other expedited service: |
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By mail:
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American Stock Transfer & Trust Co., LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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American Stock Transfer & Trust Co., LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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Name of Tendering Institution:
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DTC Account Number or Participant Number:
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Transaction Code Number:
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Name(s) of Record Holder(s):
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(Please type or print)
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Address(es):
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(Zip code)
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Area Code and Telephone Number:
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(Daytime telephone number)
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Signature(s):
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Name of Firm:
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Address:
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(Zip Code)
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Area Code and Telephone Number:
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Authorized Signature:
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Name:
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(Please type or print)
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Title:
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Date:
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NOTE:
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DO NOT SEND CERTIFICATES REPRESENTING TENDERED SHARES WITH THIS NOTICE. CERTIFICATES REPRESENTING TENDERED SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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1.
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The Offer to Purchase;
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2.
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The Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients, which includes an IRS Form W-9 relating to backup federal income tax withholding;
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A Notice of Guaranteed Delivery to be used to accept the Offer if the Shares and all other required documents cannot be delivered to American Stock Transfer & Trust Co., LLC (the “Depositary”) by the expiration date of the Offer or if the procedure for book-entry transfer cannot be completed by the expiration date of the Offer; and
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4.
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A form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer.
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Very truly yours,
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MacKenzie Partners, Inc.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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1.
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The offer price for the Offer is $9.50 per Share, subject to any required withholding of taxes, net to the seller in cash without interest, on the terms and subject to the conditions set forth in the Offer to Purchase.
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The Offer is being made for all outstanding Shares.
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The Offer is being made in connection with the Agreement and Plan of Merger, dated as of July 19, 2020 (the “Merger Agreement”), among Parent, Merger Sub, the Company and, with respect to certain sections, HS Purchaser, LLC, a Delaware limited liability company (“HS Purchaser”), and Help/Systems Holdings, Inc., a Delaware corporation (“HS Holdings” and, together with HS Purchaser, each a “Borrower” and collectively, the “Borrowers”), pursuant to which, following acceptance for payment of the Shares pursuant to the Offer, on the terms and conditions set forth in the Merger Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation.
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The board of directors of the Company (the “Company Board”) has determined that it is in the best interests of the Company and its stockholders, and approved and declared advisable the Merger Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement (collectively, the “Transactions”); approved the execution and delivery of the Merger Agreement by the Company, the performance by the Company of its covenants and other obligations in the Merger Agreement, and the consummation of the Transactions on the terms and subject to the conditions set forth in the Merger Agreement; resolved that the Merger shall be effected under Section 251(h) of the DGCL; and resolved to recommend that the stockholders of the Company accept the Offer and tender their Shares to Merger Sub pursuant to the Offer.
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5.
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The Offer and withdrawal rights will expire at one minute after 11:59 p.m. New York City time, on August 27, 2020, unless the Offer is extended or earlier terminated. Previously tendered Shares may be withdrawn at any time until the Offer has expired.
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The Offer is not subject to any financing condition. The Offer is, however, subject to the satisfaction of the Minimum Tender Condition (as defined in the Offer to Purchase) and the other conditions described in the Offer to Purchase. See Section 15 of the Offer to Purchase.
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7.
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Any transfer taxes applicable to the sale of Shares to Merger Sub pursuant to the Offer will be paid by Merger Sub, except as otherwise provided in the Letter of Transmittal.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
NEW YORK CITY TIME, ON AUGUST 27, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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*
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Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered.
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(Signatures(s))
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(Please Print Name(s))
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Address:
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(Include Zip Code)
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Area Code and Telephone Number:
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Taxpayer Identification Number or Social Security Number:
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JEFFERIES FINANCE
LLC
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GOLUB CAPITAL
LLC
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ARES CAPITAL MANAGEMENT
LLC
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HUDSON POST CREDIT OPPORTUNITIES AGGREGATOR (2019-2), LLC
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520 Madison Avenue
New York,
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200 Park Avenue, New York,
NY 10166
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245 Park Avenue,
44th Floor
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HUDSON POST CREDIT OPPORTUNITIES AGGREGATOR II, LLC
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New York 10022
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New York,
New York 10167
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200 Clarendon Street, 54th Floor
Boston, MA 02116
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Very truly yours,
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JEFFERIES FINANCE LLC
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By:
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/s/ Brian Buoye
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Name:
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Brian Buoye
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Title:
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Managing Director
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GOLUB CAPITAL LLC
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By:
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/s/ Robert G. Tuchscherer
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Name:
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Robert G. Tuchscherer
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Title:
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Managing Director
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ARES CAPITAL MANAGEMENT LLC,
solely on behalf of its affiliates and managed funds and accounts
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By:
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/s/ Jim Miller
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Name:
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Jim Miller
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Title:
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Authorized Signatory
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HUDSON POST CREDIT OPPORTUNITIES AGGREGATOR (2019-2), LLC
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By:
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/s/ Matt Jacobson
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Name:
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Matthew J. Jacobson
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Title:
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Principal
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HUDSON POST CREDIT OPPORTUNITIES AGGREGATOR II, LLC
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By:
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/s/ Matt Jacobson
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Name:
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Matthew J. Jacobson
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Title:
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Principal
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Accepted and agreed to as of
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the date first above written:
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HS PURCHASER, LLC
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By:
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/s/ Dan Mayleben
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Name:
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Daniel R. Mayleben
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Title:
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Treasurer
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HELP/SYSTEMS HOLDINGS, INC.
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By:
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/s/ Matt Reck
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Name:
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Matthew Reck
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Title:
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Chief Financial Officer
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Initial Lender
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First Lien Incremental Facility Commitment
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1.
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Jefferies
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75%
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2.
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Golub Capital
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12.5%
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3.
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Ares
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12.5%
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CONFIDENTIAL
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EXHIBIT A
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CONFIDENTIAL
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EXHIBIT A
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CONFIDENTIAL
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EXHIBIT D
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CONFIDENTIAL
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EXHIBIT D
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CONFIDENTIAL
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ANNEX I to EXHIBIT D
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CONFIDENTIAL
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ANNEX I to EXHIBIT D
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CONFIDENTIAL
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ANNEX I to EXHIBIT D
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[
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By:
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Name:
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Title:
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Very truly yours,
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HS Purchaser, LLC
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By:
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/s/ Daniel R. Mayleben
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Name:
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Daniel R. Mayleben
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Title:
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Treasurer
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Help/Systems Holdings, Inc.
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By:
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/s/ Matthew Reck
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Name:
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Matthew Reck
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Title:
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Chief Financial Officer
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By:
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/s/ Matthew Reck
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Name:
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Matthew Reck
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Title:
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Chief Financial Officer
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