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Agreement And Plan Of Merger Dated As Of June 20, 2016 By And Among

Agreement and Plan of Merger

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 This Agreement and Plan of Merger involves

COMMUNICATIONS SALES LEASING, INC. | Acquired Companies | Acquired Company | COMMUNICATIONS SALES LEASING, INC | CSL FIBER HOLDINGS LLC | SHAREHOLDER REPRESENTATIVE SERVICES LLC | THOR MERGER SUB INC | TOWER CLOUD, INC

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Title: AGREEMENT AND PLAN OF MERGER dated as of June 20, 2016 by and among
Governing Law: Delaware     Date: 8/11/2016
Industry: Real Estate Operations     Law Firm: Davis Polk;Hanson Bridgett     Sector: Services

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Exhibit 2.1

CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

EXECUTION VERSION

 

AGREEMENT AND PLAN OF MERGER

dated as of

June 20, 2016

by and among

COMMUNICATIONS SALES & LEASING, INC.,

CSL FIBER HOLDINGS LLC,

THOR MERGER SUB INC.,

TOWER CLOUD, INC.,

and

SHAREHOLDER REPRESENTATIVE SERVICES LLC ,

in its capacity as the Equityholders’ Representative

 

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

TABLE OF CONTENTS

Page

Article 1
Definitions

Section 1.01 .  Definitions

2

 

 

Section 1.02 .  Other Definitional and Interpretative Provisions

24

 

Article 2
The Merger

Section 2.01 .  The Merger

25

 

 

Section 2.02.   Certificate of Incorporation and Bylaws of the Surviving Corporation .

26

 

 

Section 2.03.   Directors and Officers of the Surviving Corporation .

26

 

 

Section 2.04.   Conversion of Shares

27

 

 

Section 2.05.   Dissenters’ Rights

29

 

 

Section 2.06.   Surrender and Payment

30

 

 

Section 2.07.   Company Stock Options and Company Warrants

32

 

 

Section 2.08.   Deposit of the Escrow Amount and Equityholders’ Representative Fund

34

 

 

Section 2.09 .  Pre-Closing Estimates; Updated Allocation Schedule

34

 

 

Section 2.10 .  Post-Closing Statement

35

 

 

Section 2.11 .  Adjustment of the Merger Consideration

37

 

 

Section 2.12.   Lost Certificates

38

 

 

Section 2.13 .  Withholding Rights

38

 

 

Section 2.14.   Earn-Out Payments .

39

 

 

Section 2.15.   Equityholders’ Representative Fund; Exculpation and Indemnification .

44

 

Article 3
Representations and Warranties of the Company

Section 3.01 .  Existence and Power

46

 

 

Section 3.02.   Authorization

46

 

 

Section 3.03 .  Governmental Authorization

47

 

 

Section 3.04.   Noncontravention

47

 

 

Section 3.05 .  Capitalization

48

 

 

Section 3.06.   Subsidiaries

49

 

 

Section 3.07.   Financial Statements

50

 

 

Section 3.08.   Absence of Certain Changes

51

 

 

Section 3.09 .  No Undisclosed Material Liabilities

51

 

 

Section 3.10.   Material Contracts

51

 

 

Section 3.11.   Tax Matters

55

 

 

Section 3.12.   Litigation

58

 

i

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Section 3.13 .  Compliance with Laws and Court Orders

58

 

 

Section 3.14.   Properties

58

 

 

Section 3.15 .  Intellectual Property

59

 

 

Section 3.16.   Insurance Coverage

61

 

 

Section 3.17.   Licenses and Permits

61

 

 

Section 3.18.   Finders’ Fees

62

 

 

Section 3.19.   Environmental Matters

62

 

 

Section 3.20 .  Employees and Labor Matters

63

 

 

Section 3.21 .  Employee Benefits

64

 

 

Section 3.22 .  Affiliate Transactions

66

 

 

Section 3.23.   Network Operations

67

 

 

Section 3.24.   Exclusivity of Representations

68

 

Article 4
Representations and Warranties of Parent, Purchaser and Merger Sub

Section 4.01.   Existence and Power

69

 

 

Section 4.02.   Authorization

69

 

 

Section 4.03.   Governmental Authorization

70

 

 

Section 4.04.   Noncontravention

70

 

 

Section 4.05 .  Financing; Parent Common Stock

70

 

 

Section 4.06.   Litigation

71

 

 

Section 4.07.   Finders’ Fees

71

 

 

Section 4.08.   Investment Purpose

71

 

 

Section 4.09.   Exclusivity of Representations

71

 

 

Section 4.10.   SEC Filings

71

 

Article 5
Covenants of the Company

Section 5.01 .  Conduct of the Acquired Companies

72

 

 

Section 5.02.   Access to Information

75

 

 

Section 5.03.   Written Consent; Information Statement; Sale of the Company

75

 

 

Section 5.04.   Takeover Statutes

76

 

 

Section 5.05.   Affiliate Contracts

76

 

 

Section 5.06 .  Resignations

76

 

 

Section 5.07.   Payoff Letters

76

 

 

Section 5.08 .  REIT Qualifying Property

77

 

 

Section 5.09.   Financial Information

77

 

 

Section 5.10.   280G Waiver and Shareholder Approval

79

 

 

Section 5.11.   Exclusivity

79

 

ii

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Article 6
Tax Matters

Section 6.01 .  Tax Matters

80

 

Article 7
Employee Matters

Section 7.01 .  Employee Matters

82

 

Article 8
Additional Covenants

Section 8.01.   Efforts; Further Assurances

84

 

 

Section 8.02.   Public Announcements; Confidentiality

85

 

 

Section 8.03 .  Third-Party Notices and Consents

86

 

 

Section 8.04.   Notices of Certain Events

87

 

 

Section 8.05.   Books and Records

87

 

 

Section 8.06.   Escrow Agreement

88

 

 

Section 8.07.   Cooperation and Support Obligations of Parent, Purchaser and Company.

88

 

 

Section 8.08 .  Shelf Registration Statement

90

 

Article 9
Conditions to Closing

Section 9.01.   Conditions to Obligations of Parent, Purchaser, Merger Sub and the Company

91

 

 

Section 9.02.   Conditions to Obligation of Parent, Purchaser and Merger Sub

91

 

 

Section 9.03.   Conditions to Obligation of the Company

93

 

Article 10
Survival; Indemnification

Section 10.01 .  Survival

94

 

 

Section 10.02 .  Indemnification

95

 

 

Section 10.03.   Third-Party Claim Procedures

96

 

 

Section 10.04 .  Calculation of Damages

98

 

 

Section 10.05.   Characterization of Indemnification Payments

98

 

 

Section 10.06.   Limitations

98

 

 

Section 10.07.   Exclusivity of Remedy

98

 

 

Section 10.08.   Mitigation

99

 

 

Section 10.09 .  Equityholders’ Representative

99

 

Article 11
Termination

Section 11.01 .  Grounds for Termination

101

 

iii

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Section 11.02.   Effect of Termination

102

 

Article 12
Miscellaneous

Section 12.01 .  Notices

103

 

 

Section 12.02.   Amendments and Waivers

104

 

 

Section 12.03 .  Disclosure Schedule References

104

 

 

Section 12.04.   Expenses

105

 

 

Section 12.05.   Successors and Assigns

105

 

 

Section 12.06.   Governing Law

105

 

 

Section 12.07.   Jurisdiction

105

 

 

Section 12.08.   WAIVER OF JURY TRIAL

105

 

 

Section 12.09.   Counterparts; Effectiveness; No Third-Party Beneficiaries

106

 

 

Section 12.10.   Entire Agreement

106

 

 

Section 12.11 .  Severability

106

 

 

Section 12.12 .  Specific Performance

106

 

 

Section 12.13.   Legal Representation .

106

 

Exhibits

 

Exhibit A– Offer Letter

Exhibit B– Form of Written Consent and Support Agreement

Exhibit C– Accounting Policies

Exhibit D– Illustrative Closing Working Capital Calculation

Exhibit E– Certificate of Merger

Exhibit F– Certificate of Incorporation

Exhibit G– Form of Letter of Transmittal

Exhibit H– Illustrative Earn-Out Payment Calculation

Exhibit I– Form of Escrow Agreement

Exhibit J– Form of Resignation

Exhibit K–Knology Amendments

 

Schedules

 

Company Disclosure Schedule

Schedule I–Allocation Schedule

Schedule II–Closing Stock Consideration

Schedule III–Required Equityholders

Schedule IV–Required Governmental Approvals

Schedule V–Severance Benefits

 

iv

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (thisAgreement ”) dated as of June 20, 2016 is made by and among Communications Sales & Leasing, Inc., a Maryland corporation (“ Parent ”), CSL Fiber Holdings LLC, a Delaware limited liability company and an indirect wholly owned Subsidiary (as defined below) of Parent (“ Purchaser ”), Thor Merger Sub Inc., a Delaware corporation and wholly owned Subsidiary of Purchaser (“ Merger Sub ”), Tower Cloud, Inc., a Delaware corporation (the “ Company ”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Equityholders as set forth herein (the “ Equityholders’ Representative ”).

RECITALS:

WHEREAS, the Board of Directors of each of the Company, Parent, Purchaser and Merger Sub has unanimously (i) declared that the Merger and the other transactions contemplated by this Agreement are fair, advisable and in the best interests of their respective companies and stockholders and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth herein;

WHEREAS, the Boards of Directors of each of the Company and Merger Sub has recommended to its stockholders the approval and adoption of this Agreement and the transactions contemplated hereby, including the Merger;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as an inducement and condition to Parent and Purchaser’s willingness to enter into this Agreement, Parent (or an Affiliate of Parent) is entering into an offer letter with the executive named on Exhibit A , which offer letter shall be effective as of, and contingent on, the Closing; and

WHEREAS, immediately following the execution and delivery of this Agreement, the Company will deliver to Purchaser the written consent of the Required Equityholders (as defined below) irrevocably adopting this Agreement and approving the Merger and the transactions contemplated by this Agreement and the other Transaction Documents and agreeing to certain matters with respect thereto (the “ Written Consent and Support Agreement ”) in the form of Exhibit B hereto.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:

 

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Article 1
Definitions

Section 1.01 .  Definitions.   The following terms, as used herein, have the following meanings:

280G Shareholder Approval Requirements ” has the meaning set forth in Section 5.10(a).

Accounting Policies ” means the accounting procedures and policies attached as Exhibit C to this Agreement and, to the extent not reflected on Exhibit C , otherwise in accordance with GAAP.

Accounting Referee ” has the meaning set forth in Section 2.10(c).

Acquired Companies ” means the Company and the Company Subsidiaries (including, from and after the Effective Time, the Surviving Corporation).

Acquired Company Employee ” has the meaning set forth in Section 3.20(a).

Action ” means any action, suit, investigation, audit (including Tax audit), litigation, arbitration, claim (including any crossclaim or counterclaim) or proceeding (including any civil, criminal, administrative, investigative or appellate proceeding).

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person.  For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.  For the avoidance of doubt, following the Effective Time the Affiliates of Parent and the Purchaser shall include the Surviving Corporation.

Affiliate Contract ” has the meaning set forth in Section 3.22(a).

Aggregate Series A Liquidation Preference ” has the meaning set forth in Section 2.04(b).

Aggregate Series B Liquidation Preference ” has the meaning set forth in Section 2.04(a).

Agreement ” has the meaning set forth in the Preamble.

2

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Allocation Schedule ” means the Allocation Schedule attached hereto as Schedule I (as updated and revised in accordance with Section 2.09(a) and Section 2.11) setting forth the following information: (i) each Equityholder’s name, address and email address, (ii) the number of shares of each class and series of Company Stock held as of immediately prior to the Effective Time by each such Equityholder, (iii) the number of shares of each class and series of Company Stock subject to Company Warrants (and the strike price thereof) held as of immediately prior to the Effective Time by each such Equityholder, (iv) the number of shares of each class and series of Company Stock subject to Company Stock Options (and the exercise price thereof) held as of immediately prior to the Effective Time by each such Equityholder, (v) the Fully Diluted Common Number, (vi) each Equityholder’s Pro Rata Share, (vii) a calculation of the Per Share Series A Liquidation Preference, the Per Share Series B Liquidation Preference and the Per Share Closing Cash Consideration, (viii) a calculation of the aggregate Merger Consideration to be paid to each Equityholder in respect of each such Equityholder’s (A) Per Share Series A Liquidation Preference, (B) Per Share Series B Liquidation Preference, (C) Per Share Closing Cash Consideration, (D) Company Stock Options, and (E) Company Warrants,  (ix) in the case of the updated Allocation Schedule delivered pursuant to Section 2.11(a), a calculation of the Merger Consideration to be paid to each Equityholder in respect of each such Equityholder’s Per Share Adjustment Consideration and Per Share Escrow Release Amount, (x) in the case of any updated Allocation Schedule delivered pursuant to Section 2.15(c), a calculation of the aggregate Merger Consideration to be paid to each Equityholder in respect of each such Equityholder’s Per Share Equityholders’ Representative Fund Release Amount,  (xi) in the case of the updated Allocation Schedule delivered pursuant to Section 2.11(a), a calculation of the aggregate Merger Consideration to be paid to each Equityholder in respect of each such Equityholder’s Per Share Earn-Out Payment (for each Earn-Out Payment assuming such Earn-Out Payment becomes payable in full and the Purchaser does not elect to deliver shares of Parent Common Stock in lieu of any portion of such amount), (xii) the wire instructions of the Payments Administrator for purposes of paying the Merger Consideration pursuant to this Agreement, and (xiii) the wire instructions of the Equityholders’ Representative for purposes of funding the Equityholders’ Representative Fund.

Applicable Law ” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person.

Audited Financial Statements ” has the meaning set forth in Section 3.07.

Balance Sheet ” means the audited consolidated balance sheet of the Company and its Subsidiaries as of the Balance Sheet Date.

3

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Balance Sheet Date ” means the date December 31, 2015.

Base Cash Consideration ” means $230,000,000.

Base Working Capital ” means $2,670,130.

Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York, or Little Rock, Arkansas, are authorized or required by Applicable Law to close.

Capex Budget ” means the capital expenditure budget of the Acquired Companies set forth in Section 5.01(a)(vi) of the Company Disclosure Schedule, provided such Capex Budget may be, with Purchaser’s prior written consent (not to be unreasonably withheld), (A) adjusted for timing of expenditures or (B) increased or decreased in the ordinary course of business.

Capitalized Lease ” means any lease required by GAAP to be classified as a capital lease on the Company’s financial statements.

Certificate of Incorporation ” means the Second Amended and Restated Certificate of Incorporation of the Company, dated as of May 24, 2012, as amended as of April 10, 2013.

Certificate of Merger ” has the meaning set forth in Section 2.01(d).

Certificate ” has the meaning set forth in Section 2.06(d).

Claim ” has the meaning set forth in Section 10.03(a).

Closing ” has the meaning set forth in Section 2.01(c).

Closing Cash means (i) the aggregate amount of all cash and cash equivalents of the Acquired Companies (including inbound checks and outstanding inbound wire transfers) minus (ii) the aggregate amount of all cash or cash equivalents that are not freely usable, distributable or transferrable by the Acquired Companies, minus (iii) outstanding outbound checks and outstanding outbound wire transfers, in the case of each of (i), (ii) and (iii), as calculated in accordance with the Accounting Policies and as of immediately prior to the Effective Time.

Closing Cash Consideration ” means an amount in cash equal to (i) the Base Cash Consideration, plus (ii) the Estimated Adjustment Amount (for the avoidance of doubt, if the Estimated Adjustment Amount is a negative number, this will result in a reduction to the Closing Cash Consideration), minus (iii) the Escrow Amount, plus (iv) the aggregate exercise price of all In-the-Money Company Stock Options outstanding as of immediately prior to the Effective

4

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Time, minus (v) the Aggregate Series A Liquidation Preference, minus (vi) the Aggregate Series B Liquidation Preference, minus (vii) the Equityholders’ Representative Fund.

Closing Date ” has the meaning set forth in Section 2.01(c).

Closing Date Conditions ” has the meaning set forth in Section 2.01(c).

Closing Indebtedness ” means the aggregate amount of all Indebtedness of the Acquired Companies as of immediately prior to the Effective Time.

Closing Stock Consideration ” means, with respect to each Equityholder, the number of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II (as updated pursuant to Section 2.04(g)) or, if less, (i) the number of shares of Parent Common Stock (rounded down to the nearest whole number) equal to the amount of Merger Consideration that would otherwise have been payable in cash at the Closing to the Payments Administrator, for the benefit of such Equityholder, divided by (ii) the Market Price; provided that, with respect to any Equityholder not listed on Schedule II , the Closing Stock Consideration shall be zero shares of Parent Common Stock; provided that, with respect to any Equityholder for which the Company does not have a current W-2 evidencing that such Equityholder is an “accredited investor” as that term is defined in Rule 501 of Regulation D of the Securities Act, if any Equityholder listed on Schedule II does not provide to Parent, at least 10 Business Days prior to the Closing Date, evidence reasonably satisfactory to Parent that such Equityholder is an “accredited investor” as that term is defined in Rule 501 of Regulation D of the Securities Act (including a letter from such Equityholder’s independent certified public accountant certifying that such Equityholder is an “accredited investor”) and a Written Consent and Support Agreement duly executed by such Equityholder, then the number of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II shall be reduced to zero, and the number of shares of Parent Common Stock set forth opposite each other Equityholder’s name on Schedule II shall be increased by such Equityholder’s proportionate share of such reduction.

Closing Working Capital ” means the amount equal to (i) the aggregate amount of current assets of the Acquired Companies (excluding any Tax assets) minus (ii) the aggregate amount of current liabilities of the Acquired Companies, calculated in accordance with the Accounting Policies and as of immediately prior to the Effective Time.  For the avoidance of doubt, no amounts or accruals in respect of Closing Cash (which for these purposes shall include the cash and cash equivalents described in clause (ii) of the definition thereof), Unpaid Transaction Expenses, Closing Indebtedness, Capitalized Leases, deferred revenue, or amounts receivable under Affiliate Contracts or other arrangements with Affiliates shall be reflected in Closing Working Capital.  An illustrative calculation of the Closing Working Capital is attached hereto as Exhibit D ; provided that in the event of any inconsistency between the illustrative

5

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

calculation attached as Exhibit D and the Accounting Policies, the Accounting Policies shall prevail.

COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985.

Code ” means the Internal Revenue Code of 1986.

Collective Bargaining Agreement ” means any written or oral agreement, memorandum of understanding or other contractual obligation between any of the Acquired Companies and any labor organization or other authorized employee representative representing Service Providers.

Common Merger Consideration ” has the meaning set forth in Section 2.04(c).

Company ” has the meaning set forth in the Preamble.

Company Common Stock ” means the Company’s common stock, par value $0.0001 per share.

Company Disclosure Schedule means the disclosure schedules dated the date of this Agreement and delivered by the Company to Merger Sub, Purchaser and Parent in connection with the execution of this Agreement.

Company Insurance Policies has the meaning set forth in Section 3.16.

Company Material Adverse Effect ” means any event, change, circumstance, effect, occurrence, condition, state of facts or development that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on (i) the financial condition, business, assets or results of operations of the Acquired Companies, taken as a whole, excluding any event, change, circumstance, effect, occurrence, condition, state of facts or development to the extent arising or resulting from (A) changes, developments or conditions in financial or securities markets in jurisdictions in which the Acquired Companies operate generally or in the general economic, business, regulatory or political conditions in the jurisdictions in which the Acquired Companies operate, (B) changes, developments or conditions generally affecting the industry in which the Acquired Companies operate, (C) acts of war, hostilities, sabotage or terrorism or man-made or natural disasters or any other calamity or crisis affecting the jurisdictions in which the Acquired Companies operate; (D) changes or proposed changes in Applicable Law or GAAP or the binding interpretation or enforcement of either; (E) the public announcement or pendency of this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby (it being understood that this clause (E) shall not apply to a breach of any representation or warranty related to the announcement or consummation of the transactions contemplated hereby or by the other

6

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Transaction Documents), (F) any act taken by any Acquired Company or any of their Affiliates at the written request of Parent, Purchaser or Merger Sub or (G) any failure of any of the Acquired Companies to meet, with respect to any period or periods, any internal or industry analyst projections, forecasts, estimates of earnings or revenues or business plans (but not the underlying facts or basis for such failure to meet projections, forecasts, estimates of earnings or revenues or business plans, which may be taken into account in determining whether there has been or would reasonably be expected to be a Company Material Adverse Effect if not otherwise excluded hereunder); provided , however , that if any event, change, circumstance, effect, occurrence, condition, state of facts or development described in any of clauses (A) through (D) has a disproportionate effect on the Acquired Companies, taken as a whole, relative to other participants in the industry in which the Acquired Companies operate, the disproportionate impact thereof shall be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect or (ii) the ability of any Equityholder or Acquired Company to perform its obligations under, or to consummate the transactions contemplated by, this Agreement or the other Transaction Documents.

Company Preferred Stock ” means the Series A Preferred Stock and the Series B Preferred Stock.

Company Securities ” has the meaning set forth in Section 3.05(b).

Company Stock ” means all of the issued and outstanding shares of Company Common Stock and Company Preferred Stock.

Company Stock Option ” means any outstanding option or similar right to purchase Company Common Stock (whether or not vested) granted under the Company Stock Plan.

Company Stock Plan ” means the Tower Cloud, Inc. Amended and Restated 2007 Equity Incentive Plan.

Company Warrants ” has the meaning set forth in Section 2.07(d).

Conduit Option Agreement ” has the meaning set forth in Section 3.10(a)(ii) of the Company Disclosure Schedule.

Confidential Information ” has the meaning set forth in Section 8.02(c).

Confidentiality Agreement ” means that certain confidentiality agreement, dated as of November 3, 2015 by and between Parent and the Company.

Contract ” means any written or oral agreement, lease, sublease, license, contract, IRU obligation, Permit, sale or purchase order, indenture, note, bond, loan, mortgage, deed of trust,

7

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

instrument, commitment or undertaking that is or purports to be legally binding, including any exhibits, annexes, appendices or attachments thereto, and any amendments, modifications, supplements, service orders, extension or renewals.

Counsel ” has the meaning set forth in Section 12.13(a).

Covered Employee ” has the meaning set forth in Section 7.01(a).

Covered Tax means any (i) Tax described in clause (i) of the definition of “Tax” of an Acquired Company related to a Pre-Closing Tax Period, (ii) Tax described in clause (ii) or (iii) of the definition of “Tax” of an Acquired Company for the payment of any amount as a result of being party to any Tax Sharing Agreement, (iii) Tax of an Acquired Company resulting from a breach by the Company or any of the Equityholder and any of their Affiliates of any representation, covenant or agreement contained herein and (iv) the portion of any Transfer Tax to be borne by the Equityholders pursuant to Section 6.01 (but only to the extent such portion was not taken into account as a Final Unpaid Transaction Expense in the determination of the Final Adjustment Amount).

Damages ” has the meaning set forth in Section 10.02(a).

Dark Fiber Earn-Out Amount ” has the meaning set forth in Section 2.14(b).

Dark Fiber Earn-Out Measurement Date ” has the meaning set forth in Section 2.14(b).

Dark Fiber Earn-Out Measurement Period ” has the meaning set forth in Section 2.14(b).

Dark Fiber Contracts ” means those certain route orders identified on Section 1.01(a) of the Company Disclosure Schedule.

Dark Fiber Master Contracts ” means the Master Dark Fiber IRU Agreement and the Master Colocation and Maintenance Agreement, both dated effective as of November 17, 2014, as described on Section 1.01(a) of the Company Disclosure Schedule.

DGCL ” means the Delaware General Corporation Law.

Disregarded Shares ” has the meaning set forth in Section 2.04(d).

Dissenting Shares ” has the meaning set forth in Section 2.05(a).

Earn-Out Dispute ” has the meaning set forth in Section 2.14(j)(ii).

8

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Earn-Out Dispute Notice ” has the meaning set forth in Section 2.14(j)(i).

Earn-Out Measurement Date Payment ” has the meaning set forth in Section 2.14(e).

Earn-Out Payment ” has the meaning set forth in Section 2.14(a).

Easements ” means all servitudes, easements, licenses, rights of way, pole attachments and similar agreements providing rights to real estate for access, parking, location, maintenance, repair and replacement of cables, utilities, utility lines, wires, anchors and other property.

End Date has the meaning set forth in Section 11.01(b).

Effective Time ” has the meaning set forth in Section 2.01(d).

Employee Plan means any (i) “employee benefit plan” as defined in Section 3(3) of ERISA, (ii) compensation, employment, consulting, severance, termination protection, change in control, transaction bonus, retention or similar plan, agreement, arrangement, program or policy or (iii) other plan, agreement, arrangement, program or policy providing for compensation, bonuses, profit-sharing, equity or equity-based compensation or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangement), medical, dental, vision, prescription or fringe benefits, life insurance, relocation or expatriate benefits, perquisites, disability or sick leave benefits, employee assistance program, workers’ compensation, supplemental unemployment benefits or post-employment or retirement benefits (including compensation, pension, health, medical or insurance benefits), in each case whether or not written (x) that is sponsored, maintained, administered, contributed to or entered into by any of the Acquired Companies or any of their respective ERISA Affiliates for the current or future benefit of any current or former Service Provider or (y) for which any of the Acquired Companies has any direct or indirect liability.  For the avoidance of doubt, a Collective Bargaining Agreement shall constitute an agreement for purposes of clauses (ii) and (iii).

Environmental Laws ” means any Applicable Law relating to human health or safety, the environment or any pollutants, contaminants, wastes, chemicals, or any other toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substances, wastes or materials, including the terms of any Environmental Permit.

Environmental Permits ” means all Permits required by Environmental Laws for the business of the Acquired Companies as currently conducted.

Environmental Release ” means any release, spill, leak, pumping, pouring, emitting, emptying, discharge, injection, escape, leaching, dumping, placing, discarding, abandonment, disposal, deposit, dispersing or migration into or through the environment.

9

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Equityholder ” means a Stockholder, Warrant Holder or Option Holder, in each case immediately prior to the Effective Time.

Equityholder Indemnified Parties ” has the meaning set forth in Section 10.02(b).

Equityholders’ Representative ” has the meaning set forth in the Preamble.

Equityholders’ Representative Fund ” has the meaning set forth in Section 2.08(b).

Equityholders’ Representative Fund Balance ” means the portion of the Equityholders’ Representative Fund remaining at such time as the Equityholders’ Representative determines that such funds are no longer required to be withheld in accordance with Section 2.15(c).

ERISA ” means the Employee Retirement Income Security Act of 1974.

ERISA Affiliate with respect to an entity means any other entity that, together with such first entity, would be treated as a single employer under Section 414 of the Code.

Escrow Agent ” means PNC Bank, National Association (or, if they are unable or unwilling to serve, such other nationally recognized, reputable and impartial escrow agent mutually agreed by Purchaser and the Equityholders’ Representative).

Escrow Account ” has the meaning set forth in Section 2.08(a).

Escrow Agreement ” has the meaning set forth in Section 8.06.

Escrow Amount ” has the meaning set forth in Section 2.08(a).

Estimate Statement ” has the meaning set forth in Section 2.09(a).

Estimated Adjustment Amount means an amount, which may be positive or negative, equal to (i) (A) Estimated Closing Working Capital minus (B) Base Working Capital (which, for the avoidance of doubt, shall be a negative number if Estimated Closing Working Capital is less than Base Working Capital, which will result in a reduction to the Estimated Adjustment Amount), minus (ii) Estimated Closing Indebtedness, minus (iii) Estimated Unpaid Transaction Expenses, plus (iv) Estimated Closing Cash.

Estimated Closing Cash ” has the meaning set forth in Section 2.09(a).

Estimated Closing Indebtedness ” has the meaning set forth in Section 2.09(a).

Estimated Closing Working Capital ” has the meaning set forth in Section 2.09(a).

10

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Estimated Unpaid Transaction Expenses ” has the meaning set forth in Section 2.09(a).

Excess Parachute Payments ” has the meaning set forth in Section 5.10(a).

Exchange Act ” means the Securities and Exchange Act of 1934, as amended.

FCC ” means the Federal Communications Commission.

Fiber ” means fiber optic cabling and conduits (or usage rights thereto) owned or held by any of the Acquired Companies by lease, IRU or otherwise.

Fiber Lateral Sale Contract ” has the meaning set forth in Section 2.14(f).

Fiber Lateral Sale Contract Proceeds ” has the meaning set forth in Section 2.14(f).

Final Adjustment Amount means an amount, which may be positive or negative, equal to (i) (A) Final Closing Working Capital minus (B) Base Working Capital (which, for the avoidance of doubt, shall be a negative number if Final Closing Working Capital is less than Base Working Capital, which will result in a reduction to the Final Adjustment Amount), minus (ii) Final Closing Indebtedness, minus (iii) Final Unpaid Transaction Expenses, plus (iv) Final Closing Cash.

Final Amounts ” means each of Final Closing Working Capital, Final Unpaid Transaction Expenses, Final Closing Indebtedness, Final Closing Cash and Final Adjustment Amount.

Final Closing Cash ” has the meaning set forth in Section 2.11(c).

Final Closing Indebtedness ” has the meaning set forth in Section 2.11(c).

Final Closing Working Capital ” has the meaning set forth in Section 2.11(c).

Final Unpaid Transaction Expenses ” has the meaning set forth in Section 2.11(c).

Financial Statements ” has the meaning set forth in Section 3.07.

First Small Cell Earn-Out Amount ” has the meaning set forth in Section 2.14(c).

Fully Diluted Common Number ” means the sum of (i) the total number of shares of Company Stock (including Dissenting Shares, but excluding Disregarded Shares) outstanding immediately prior to the Effective Time (assuming all shares of Company Preferred Stock are converted into Company Common Stock as of such time) and (ii) the total number of shares of

11

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Company Common Stock issuable upon the exercise in full of all In-the-Money Company Stock Options (whether or not vested) outstanding immediately prior to the Effective Time.

Fundamental Representations ” has the meaning set forth in Section 10.01.

GAAP ” means generally accepted accounting principles in the United States in effect from time to time and applied on a consistent basis.

Governing Documents ” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs, including the articles or certificate of incorporation or formation, bylaws, operating agreement, limited liability company agreement, partnership agreement, shareholders’ agreement, voting agreement, voting trust agreement, joint venture agreement, registration rights agreement and any similar agreement and any amendments or supplements to any of the foregoing.

Governmental Authority ” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority (including self-regulatory authorities), department, court, agency or official, including any political subdivision thereof.

Government Contract ” means any Contract between any Acquired Company and any Governmental Authority, including any agency of the United States or any agency of any of its respective states or local governments, including any bid, quote, or offer for such Government Contract, and all service orders, purchase orders, delivery orders or task orders under such Government Contracts, each of which is a separate Government Contract.  The term “Government Contract” also includes any Contract or subcontract (at any tier) of any Acquired Company with any other Person that arises under or pursuant to, or relates to such other Person’s prime contract or subcontract under a Government Contract.

Hazardous Substance ” means any pollutant or contaminant or any toxic, radioactive or otherwise hazardous substance, waste or material, or any substance, waste or material having any constituent elements displaying any hazardous, toxic or radioactive characteristics, including petroleum, its derivatives, by-products and other hydrocarbons, asbestos-containing materials and any substance, waste or material regulated under any Environmental Law.

HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

Indebtedness ” means, with respect to any of the Acquired Companies, all obligations (including all obligations in respect of principal, accrued interest, penalties, fees and premiums, and all prepayment premiums or penalties and other amounts that may become due as a result of the transactions contemplated hereby) of such Acquired Company (i) for borrowed money (including overdraft facilities), (ii) evidenced by notes, bonds, debentures or similar Contracts or securities, (iii) created or arising under any conditional sale or other title retention agreement

12

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (iv) secured by a purchase money mortgage or other Lien to secure all or part of the purchase price of the property subject to such Lien, (v) for the deferred purchase price of assets, property, goods or services, including all seller notes and “earn-out” payments and purchase price adjustment payments, (vi) in respect of letters of credit and bankers’ acceptances (to the extent drawn), (vii) for Contracts relating to interest rate protection, swap agreements, collar agreements and other hedging agreements, (viii) for all deferred revenue in excess of $25,000,000, (ix) for accrued compensation, asset retirement obligations and payables in the aggregate related thereto to the extent not set forth on the Balance Sheet, (x) in respect of forward sale and purchase agreements, (xi) in the nature of guarantees of the obligations described in clauses (i) through (x) above of any other Person.  For purposes of this Agreement, “Indebtedness” does not include any (i) obligations to the extent owing from any Acquired Company solely to any other Acquired Company, (ii) amounts included in Final Unpaid Transaction Expenses or (iii) liabilities (other than in connection with any breach) pursuant to Capitalized Leases.

Indemnified Party ” has the meaning set forth in Section 10.03(a).

Indemnifying Party ” has the meaning set forth in Section 10.03(a).

Information Statement ” has the meaning set forth in Section 5.03.

In-the-Money Company Stock Option ” means an unexercised Company Stock Option (whether or not vested) with an exercise price per share of Company Common Stock that is equal to or less than the Per Share Closing Cash Consideration.

Intellectual Property Rights ” means any and all intellectual property and similar proprietary rights throughout the world, including (i) patents and patent applications (including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations thereof) registered or applied for in the United States and all other nations throughout the world, all improvements to the inventions disclosed in each such registration, patent or patent application, (ii) trademarks, service marks, trade dress, logos, domain names, rights of publicity, trade names and corporate names (whether or not registered) in the United States and all other nations throughout the world, including all registrations and applications for registration of the foregoing and all goodwill associated therewith, (iii) copyrights (whether or not registered) and registrations and applications for registration thereof in the United States and all other nations throughout the world, including all derivative works, moral rights, renewals, extensions, reversions or restorations associated with such copyrights, now or hereafter provided by law, regardless of the medium of fixation or means of expression, (iv) computer software (including source code, object code, firmware, operating systems and specifications), (v) trade secrets and

13

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

know-how, (vi) databases and data collections, and (vii) all rights to sue or recover and retain damages and costs and attorneys’ fees for past, present and future infringement or misappropriation of any of the foregoing.

IRS ” means the U.S. Internal Revenue Service.

IRU ” shall mean any indefeasible rights of use granted to, leased by or held or possessed by any of the Acquired Companies’ with respect to the Acquired Companies’ network or infrastructure, including with respect to any of the Acquired Company’s rights to use Fiber, including the dark fiber of another Person.

IT Assets ” means any and all computers, software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines and all other information technology equipment (including laptops and mobile devices) and systems, and all associated documentation, owned by, or licensed or leased to, any of the Acquired Companies.

JAMS Rules ” has the meaning set forth in Section 2.14(j)(ii).

Key Employee ” means any of the individuals set forth on Section 1.01(b) of the Company Disclosure Schedule.

knowledge means (i) in the case of the Company, the knowledge, after reasonable inquiry, of the individuals set forth on Section 1.01(c) of the Company Disclosure Schedule; and (ii) in the case of Purchaser or Merger Sub, the knowledge, after reasonable inquiry, of the General Counsel of Parent.

Leased Real Property ” has the meaning set forth in Section 3.14(b).

Leases ” has the meaning set forth in Section 3.14(b).

Letter of Transmittal ” shall have the meaning set forth in Section 2.06(b).

Licensed Intellectual Property Rights ” means any and all Intellectual Property Rights owned by a third party and licensed or sublicensed to any of the Acquired Companies or for which any of the Acquired Companies has obtained a covenant not to be sued.

Liability ” means any debt, liability or obligation of any kind, whether due or to become due, absolute or contingent, inchoate or otherwise, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, secured or unsecured, determined or determinable, or otherwise, and includes all costs and expenses relating thereto.

14

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Lien ” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, deed of trust, lease or sublease, license, encumbrance or other similar adverse claim of any kind in respect of such property or asset, including any restriction on the right to vote, sell or otherwise dispose of any capital stock or other voting or equity interest.  For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

Market Price ” per share of Parent Common Stock shall be $26.66 (or, in the case of Section 2.14(g), the volume weighted average closing trading price per share on the NASDAQ (or on such other exchange as the Parent Stock may be listed at such time) for the 20 trading days immediately preceding the second Business Day prior to the date of delivery).

Material Contracts ” has the meaning set forth in Section 3.10(b).

Maximum Dark Fiber Earn-Out Amount ” has the meaning set forth in Section 2.14(b).

Maximum Renewal Earn-Out Amount ” has the meaning set forth in Section 2.14(e).

Maximum Second Small Cell Earn-Out Amount ” has the meaning set forth in Section 2.14(d).

Maximum Series A Liquidation Preference means an amount equal to (i) the Base Cash Consideration, plus (ii) the Estimated Adjustment Amount (for the avoidance of doubt, if the Estimated Adjustment Amount is a negative number, this will result in a reduction to the Maximum Series A Liquidation Preference), minus (iii) the Escrow Amount, minus (iv) the Aggregate Series B Liquidation Preference.

Maximum Series B Liquidation Preference means an amount equal to (i) the Base Cash Consideration, plus (ii) the Estimated Adjustment Amount (for the avoidance of doubt, if the Estimated Adjustment Amount is a negative number, this will result in a reduction to the Maximum Series B Liquidation Preference), minus (iii) the Escrow Amount.

Merger ” has the meaning set forth in Section 2.01(a).

Merger Consideration ” means, collectively, the Aggregate Series A Liquidation Preference, the Aggregate Series B Liquidation Preference and the Common Merger Consideration, subject to adjustment pursuant to Section 2.04(f).

Merger Sub ” has the meaning set forth in the Preamble.

15

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 3(37) of ERISA.

Option Holder ” means a holder of a Company Stock Option.

Order ” means any judgment, decree, injunction, ruling, award, subpoena, verdict or order of any Governmental Authority or arbitrator.

Out-of-the-Money Company Stock Option ” means a Company Stock Option that is not an In-the-Money Company Stock Option.

Overpayment Amount ” has the meaning set forth in Section 2.11(b)(i).

Owned Intellectual Property Rights ” means all Intellectual Property Rights owned by any of the Acquired Companies.

Owned Real Property ” has the meaning set forth in Section 3.14(a).

Parent ” has the meaning set forth in the Preamble.

Parent Common Stock ” means a share of Parent’s common stock, par value $0.0001 per share.

Parent Indemnified Parties ” has the meaning set forth in Section 10.02(a).

Parent Material Adverse Effect ” means any event, change, circumstance, effect, occurrence, condition, state of facts or development that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Parent, Purchaser or Merger Sub to perform its obligations under, or to consummate the transactions contemplated by, this Agreement or the other Transaction Documents.

Parent SEC Reports ” means Parent’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 and Parent’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2016.

Parent Welfare Plan ” has the meaning set forth in Section 7.01(c).

Payments Administrator ” means Acquiom Clearinghouse LLC, a Delaware limited liability company (or, if it is unable or unwilling to serve, such other reputable paying agent designated by the Equityholders’ Representative and reasonably acceptable to Purchaser).

Payments Agreement ” has the meaning set forth in Section 2.06(a).

16

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Payoff Letters ” has the meaning set forth in Section 5.07.

PBGC ” means the Pension Benefit Guaranty Corporation.

Per Share Adjustment Consideration means an amount in cash equal to the quotient of (i) the Underpayment Amount, if any, less any applicable fees, costs or expenses (including the fees of Raymond James & Associates, Inc. and the Payments Administrator), and (ii) the Fully Diluted Common Number.

Per Share Equityholders’ Representative Fund Release Amount ” means an amount in cash equal to the quotient of (i) the Equityholders’ Representative Fund Balance, if any, less any applicable fees, costs or expenses (including the fees of Raymond James & Associates, Inc. and the Payments Administrator), and (ii) the Fully Diluted Common Number.

Per Share Escrow Release Amount means an amount in cash equal to the quotient of (i) the amount remaining in the Escrow Account after giving effect to Section 2.11(b)(i) and Section 2.11(b)(ii), if any, less any applicable fees, costs or expenses (including the fees of Raymond James & Associates, Inc. and the Payments Administrator), and (ii) the Fully Diluted Common Number.

Per Share Closing Cash Consideration means an amount in cash equal to the quotient of (i) the Closing Cash Consideration and (ii) the Fully Diluted Common Number.

Per Share Earn-Out Payments means an amount in cash equal to the quotient of (i) the amount of cash paid to the Payments Administrator pursuant to Section 2.14(g) in respect of any Earn-Out Payment, if any, less any applicable fees, costs or expenses (including the fees of Raymond James & Associates, Inc. and the Payments Administrator) and (ii) the Fully Diluted Common Number.

Per Share Series A Liquidation Preference ” has the meaning set forth in Section 2.04(b).

Per Share Series B Liquidation Preference ” has the meaning set forth in Section 2.04(a).

Permits ” means each license, franchise, permit, certificate, approval or other similar authorization issued by a Governmental Authority affecting, or relating to, the assets or business of the Acquired Companies.

Permitted Liens ” means (i) Liens for Taxes not yet due or, if due, being contested in good faith and for which adequate accruals or reserves have been established on the Balance Sheet; (ii) mechanic’s, materialman’s, carrier’s, repairer’s and other similar Liens arising or

17

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

incurred in the ordinary course of business and not yet due and payable or, if due and payable, are being contested in good faith and for which adequate accruals or reserves have been established on the Balance Sheet; (iii) (x) zoning, building codes and other land use laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such real property which, individually or in the aggregate, have not and would not reasonably be expected to materially and adversely affect the conduct of the business thereon as currently conducted; (y) easements, covenants, rights-of-way and other similar restrictions of record which, individually or in the aggregate, have not and would not reasonably be expected to materially and adversely affect the conduct of the business thereon as currently conducted; and (z) Liens encumbering the real property of any third party owner, landlord or developer over which the Acquired Companies have Easement rights or tenant’s or other occupancy rights and subordination or similar agreements relating thereto so long as the matters contemplated by this clause (iii) do not materially interfere with the conduct of the business by the Acquired Companies as currently conducted on any such real property; (iv) the terms and conditions of any lease or Easement agreement which the Acquired Companies are party to, including any statutory landlord’s lien, which terms and conditions are customary for similar leases or Easements negotiated on commercially reasonable terms (other than in connection with any breach or default thereunder); (v) in respect of Intellectual Property, non-exclusive licenses of Intellectual Property granted in the ordinary course of business consistent with past practice; (vi) Liens that will be released or extinguished at the Closing, without any Liability to any Acquired Company, (vii) Liens to the extent specifically disclosed in the most recent Audited Financial Statements; (viii) Liens which do not materially detract from the value, materially interfere with any present or intended use or materially and adversely affect the marketability of any such property or assets; (ix) Liens created pursuant to the terms of any Capitalized Leases, so long as such Liens (x) serve only to secure the payment of obligations arising thereunder and (y) are incurred in the ordinary course of business consistent with past practice and not in connection with any breach of the terms thereof and (x) Liens created pursuant to the terms of the Dark Fiber Master Contracts or similar Material Contracts set forth on Section 3.10(a) of the Disclosure Schedule, so long as such Liens (x) do not materially interfere with the rights of use granted to or held by the Acquired Companies thereunder and (y) are incurred in the ordinary course of business consistent with past practice and not in connection with any breach of the terms of any such Contract.

Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

Post-Closing Statement ” has the meaning set forth in Section 2.10(a).

Post-Closing Tax Period ” means any Tax period beginning after the Closing Date and, with respect to a Straddle Tax Period, the portion of such Tax period beginning after the Closing Date.

18

 


CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Pre-Closing Tax Period ” means any Tax period ending on or before the Closing Date and, with respect to a Straddle Tax Period, the portion of such Tax period ending on the Closing Date.

Pro Rata Share ” means, with respect to each Equityholder, a fraction (expressed as a percentage) (i) the numerator of which is the sum of (A) the total number of shares of Company Common Stock held by such Equityholder (on an as-converted basis with respect to any shares of Company Preferred Stock held by such Equityholder) and (B) the total number of shares of Company Common Stock issuable upon the exercise in full of all In-the-Money Company Stock Options (whether or not vested), in each case immediately prior to the Effective Time, and (ii) the denominator of which is the Fully Diluted Common Number; provided that in all cases the aggregate Pro Rata Shares of all Equityholders shall equal 100%.

Prospectus ” means the prospectus included in any registration statement of Parent filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits attached to or incorporated in and all other material incorporated by reference in such registration statement.

Purchaser ” has the meaning set forth in the Preamble.

Registrable Securities ” means (a) the shares of Parent Common Stock comprising the Closing Stock Consideration and delivered in connection with any Earn-Out Payment pursuant to Section 2.14(g) and (b) any other securities issued or issuable with respect to any of the securities described in the foregoing clause (a) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, amalgamation and other reorganization; provided that the term “Registrable Securities” shall exclude any security (i) the offering and sale of which has been registered effectively under the Securities Act and which has been sold in accordance with an effective registration statement, (ii) that has been sold by a Stock Recipient in a transaction or transactions exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(a)(1) thereof (including transactions pursuant to Rule 144) and Parent has delivered a new certificate or other evidence of ownership for such security not bearing the legend required pursuant to this Agreement and such security is not subject to any stop-transfer order or other restriction on transfer, (iii) that is eligible for sale by a Stock Recipient without limitation as to volume or manner of sale pursuant to Rule 144 or (iv) issued to any Person who has not delivered to Purchaser, within 72 hours following the date hereof, a Written Consent and Support Agreement duly executed by such Person.

Regular Shelf Suspension ” has the meaning set forth in Section 8.08(b).

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

REIT Qualifying Property ” means all assets or properties (or portions thereof) of any of the Acquired Companies that constitute “real estate assets” within the meaning of Section 856(c)(4) of the Code (including all rights to use “dark fiber” granted to or held, leased or possessed by any of the Acquired Companies).

Renewal Baseline Amount ” has the meaning set forth in Section 2.14(e).

Renewal Billing Amount ” has the meaning set forth in Section 2.14(e).

Renewal Earn-Out Amount ” has the meaning set forth in Section 2.14(e).

Renewal Earn-Out Measurement Date ” has the meaning set forth in Section 2.14(e).

Renewal Earn-Out Measurement Period ” has the meaning set forth in Section 2.14(e).

Renewal Sites ” has the meaning set forth in Section 2.14(e).

Representative ” has the meaning set forth in Section 5.02.

Representative Losses ” has the meaning set forth in Section 2.15(d).

Required Equityholders ” means the Equityholders set forth on Schedule III .

Required Interim Financial Statements ” has the meaning set forth in Section 5.09(a).

Required Governmental Approvals ” shall mean the requests for consent, approval, authorization or waiver or notifications required to be filed with any Governmental Authority in connection with the transactions contemplated hereby as set forth on Schedule IV .

Required Stockholder Vote means the affirmative vote or consent of (i) a majority of the issued and outstanding shares of Company Stock (on an as-converted basis with respect to any shares of Company Preferred Stock held by such Equityholder (including those issuable upon the exercise in full of all Company Warrants)), and (ii) at least 62% of the issued and outstanding shares of Company Preferred Stock (voting together as a single class).

R&W Insurance ” means the insurance coverage provided pursuant to the representations and warranties insurance policy arranged by Purchaser in connection with this Agreement.

Second Small Cell Earn-Out Measurement Date ” has the meaning set forth in Section 2.14(d).

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Second Small Cell Earn-Out Measurement Period ” has the meaning set forth in Section 2.14(d).

Second Small Cell Earn-Out Amount ” has the meaning set forth in Section 2.14(d).

Securities Act ” means the Securities Act of 1933.

Series A Preferred Stock ” means the Company’s preferred stock, par value $0.0001 per share, designated Series A Preferred Stock.

Series B Preferred Stock ” means the Company’s preferred stock, par value $0.0001 per share, designated Series B Preferred Stock.

Service Provider ” means any director, officer, employee or individual independent contractor of any of the Acquired Companies.

Shelf Registration Statement ” has the meaning set forth in Section 8.08(a).

Shelf Suspension ” has the meaning set forth in Section 8.08(b).

Significant Counterparty ” has the meaning set forth in Section 3.10(d).

Small Cell Customer ” means Verizon Wireless, AT&T, T-Mobile, Sprint, or any other wireless carrier, internet service provider or commercial or governmental customer.

Small Cell Nodes means fiber or other broadband services delivered to, or provision of space on a pole or other infrastructure for, (i) a radio access node that combine antennas, radios, and processing units in a single form factor, (ii) a radio access node containing a combination of antenna and remote radio unit, (iii) access nodes of an indoor or outdoor distributed antenna systems (DAS), (iv) access nodes of a carrier-grade Wi-Fi system with comparable economics to the nodes described in the foregoing clauses (i) through (iii), (v) other radio access nodes commonly referred to in the wireless industry as “small cell”, CRAN (including CRAN hubs) or “mini-macro”, or (vi) access nodes utilizing unlicensed spectrum for the provision of broadband services, but excluding point-to-point wireless solutions, with comparable economics to the nodes described in the foregoing clauses (i) through (iii); provided that multiple Small Cell Nodes sharing the same pole or other infrastructure shall be counted separately only if the Contract with the relevant Small Cell Customer is not for a multi-radio solution sold as a single service; provided , further , Small Cell Nodes shall not include any Small Cell Nodes owned by, or in the backlog under any Contract with, (x) Parent or any of its Subsidiaries as of the Effective Time or (y) any Person acquired by Parent or any of its Subsidiaries as of the time such Person is acquired by Parent or any such Subsidiary.

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Stock Recipient ” has the meaning set forth in Section 8.08(a).

Stockholder ” means any Person who holds one or more shares of Company Stock (other than Disregarded Shares) immediately prior to the Effective Time.

Straddle Tax Period ” means a Tax period that begins on or before the Closing Date and ends thereafter.

Subsidiary ” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions (or, if there are no such voting securities or voting interests, of which at least a majority of the equity interests) is directly or indirectly owned or controlled by such Person.  Unless context otherwise requires, the term Subsidiary as used in this Agreement shall relate to Subsidiaries of the Company.

Subsidiary Securities ” has the meaning set forth in Section 3.06(c).

Surviving Corporation ” has the meaning set forth in Section 2.01(a).

Tax means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person and any payment required to be made to any Governmental Authority pursuant to an escheat, unclaimed property or similar Applicable Law), together with any interest, penalty, addition to tax or additional amount (including penalties for failure to file or late filing any return, report or other filing), and any liability for any of the foregoing as transferee, (ii) in the case of any of the Acquired Companies, liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the Effective Time a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement or arrangement, as a result of which liability of an Acquired Company to a Taxing Authority is determined or taken into account with reference to the activities of any Person other than an Acquired Company and (iii) liability of an Acquired Company for the payment of any amount as a result of being party to any Tax Sharing Agreement.

Tax Asset ” means any net operating loss, net capital loss, investment tax credit, foreign tax credit, charitable deduction or any other credit or tax attribute that could be carried forward or back to reduce Taxes (including deductions and credits related to alternative minimum Taxes).

Tax Grant ” means any Tax exemption, Tax holiday or reduced Tax rate granted by a Taxing Authority with respect to any of the Acquired Companies that is not generally available to Persons without specific application therefor.

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Tax Return ” means any Tax return, statement, report, election, declaration, disclosure, schedule or form (including any estimated tax or information return or report) filed or required to be filed with any Taxing Authority.

Tax Sharing Agreement ” means any agreement or arrangement (whether or not written) entered into prior to the Closing binding any of the Acquired Companies that provides for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the purpose of determining any Person’s Tax liability.

Taxing Authority ” shall mean any Governmental Authority responsible for the imposition or collection of any Tax.

Telecommunications Law ” means any Applicable Law administered by the FCC or any comparable state or local Applicable Law relating to the provision of telecommunications services administered by a public utility commission or analogous regulator in any United States state or the District of Columbia regulating the telecommunications industry and having authority over any of the Acquired Companies and/or any of the property, assets or business of any of the Acquired Companies.

Third-Party Claim ” has the meaning set forth in Section 10.03(b).

Top Customers ” has the meaning set forth in Section 3.10(a)(iv)(A).

Top Vendors ” has the meaning set forth in Section 3.10(a)(v).

Top Fiber Providers ” has the meaning set forth in Section 3.10(d).

Transaction Documents ” means this Agreement, the Written Consent and Support Agreements, the Payments Agreement, the Escrow Agreement and the Letters of Transmittal.

Transaction Expenses ” means (A) all costs, fees and expenses incurred by any of the Acquired Companies at or prior to the Effective Time related to the transactions contemplated by this Agreement or any of the other Transaction Documents (or any other sale process conducted or pursued by any of the Acquired Companies), whether payable prior to, at or after the Closing, including (i) costs, fees and expenses of investment bankers (including the brokers referred to in Section 3.18), attorneys, accountants and other consultants and advisors, (ii) all retention, change of control, transaction or similar bonuses, compensation and/or severance payments incurred or payable by any of the Acquired Companies in connection with the transactions contemplated hereby (including the employer portion of any payroll, employment or similar Taxes related thereto) and (iii) all costs, fees and expenses incurred as a result of (or that would be incurred as a result of) the termination of any Affiliate Contract as contemplated hereby, (B) the cost of any

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

directors’ and officers’ insurance policy procured by any of the Acquired Companies related to the transactions contemplated hereby, (C) 50% of all Transfer Taxes, (D) 50% of all out-of-pocket costs and expenses incurred by the parties hereto or any of their Affiliates in connection with the preparation and submission of any filings or notices to any Governmental Authority, including in respect of any Required Governmental Approvals, (E) 50% of the R&W Insurance policy premium, (F) 50% of all fees, costs and expenses of the Escrow Agent (G) the employer portion of any payroll, employment or similar Taxes associated with any payment in respect of Company Stock Options, (H) the fees, costs and expenses of the Equityholders’ Representative and (I) all fees, costs and expenses of the Payments Administrator.

Transfer Tax ” means any transfer, documentary, sales, use, stamp, registration, value added or other similar Tax (including any penalties and interest) arising in connection with the transactions contemplated by this Agreement.

Unaudited Financial Statements ” has the meaning set forth in Section 3.07.

Uncertificated Shares ” has the meaning set forth in Section 2.06(d).

Underpayment Amount ” has the meaning set forth in Section 2.11(b)(ii).

Unpaid Transaction Expenses ” means the aggregate amount of Transaction Expenses that are unpaid immediately prior to the Effective Time.

Unusual Shelf Suspension ” has the meaning set forth in Section 8.08(b).

WARN ” means the Worker Adjustment and Retraining Notification Act and any comparable foreign, state or local law.

Warrant Holder ” means a holder of a Company Warrant.

Written Consent and Support Agreement ” has the meaning set forth in the Recitals.

Section 1.02 .  Other Definitional and Interpretative Provisions.   The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.  References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified.  All Exhibits and Schedules annexed hereto or referred to herein, including the Company Disclosure Schedule, are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.  Any singular term in this Agreement shall be deemed

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

to include the plural, and any plural term the singular.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.  “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  The word “or” when used in this Agreement is not exclusive.  References to any statute, rule, regulation, law or Applicable Law shall be deemed to refer to all Applicable Laws as amended or supplemented from time to time and to any rules, regulations and interpretations promulgated thereunder.  References to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any Contract listed (or required to be listed) on any schedules hereto, or any Contract required to be disclosed by any Transaction Document, all amendments, modifications, supplements, extensions and renewals thereto must also be listed on the appropriate schedule and copies thereof disclosed.  References to any Person include the successors and permitted assigns of that Person.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.  The parties have participated jointly in the negotiation and drafting of this Agreement and each has been represented by counsel of its choosing and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Article 2
The Merger

Section 2.01 .  The Merger. (a) At the Effective Time, and upon the terms and subject to the conditions set forth in this Agreement, Purchaser, Merger Sub and the Company shall cause Merger Sub to be merged with and into the Company in accordance with the applicable provisions of the DGCL (the “ Merger ”), whereupon the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation (the “ Surviving Corporation ”).  

(b)From and after the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the DGCL and the Surviving Corporation shall possess all of the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the Company and Merger Sub, all as provided under the DGCL.

(c)Subject to the provisions of Article 9, the closing of the Merger (the “ Closing ”) shall take place (i) in New York City at the offices of Davis Polk & Wardwell LLP, 450

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Lexington Avenue, New York, New York, 10017, or remotely by the exchange of documents and signatures (or their electronic counterparts), on the fifth Business Day following the date on which all of the conditions set forth in Article 9 have been satisfied or, to the extent permissible, waived by the party or parties entitled to the benefit of such conditions (other than those conditions that by their nature are to be satisfied at the Closing (the “ Closing Date Conditions ”), but subject to the satisfaction of, or, to the extent permissible, waiver by the party or parties entitled to the benefit of, the Closing Date Conditions), or (ii) at such other place, at such other time or on such other date as Purchaser and the Company may mutually agree.  The date on which the Closing actually occurs is referred to in this Agreement as the “ Closing Date ”.  

(d)Prior to the Closing, the Company and Merger Sub shall prepare, and at the Closing, the Company shall file, or cause to be filed, with the Secretary of State of the State of Delaware, a certificate of merger relating to the Merger in substantially the form of Exhibit E (the “ Certificate of Merger ”) and any other appropriate documents, in each case as approved by Purchaser, executed in accordance with the relevant provisions of the DGCL (including Section 251 of the DGCL) and, on the Closing Date or as soon as practicable thereafter, shall make all other filings or recordings required under the DGCL.  The Merger shall become effective at such time (the “ Effective Time ”) as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware (or at such other later time as may be agreed by Purchaser and the Company and specified in the Certificate of Merger).  

Section 2.02.   Certificate of Incorporation and Bylaws of the Surviving Corporation .  

(a)At the Effective Time, the certificate of incorporation of the Company shall be amended as of the Effective Time to read in its entirety in the form of the certificate of incorporation attached hereto as Exhibit F hereto, and, as so amended, shall become the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with the applicable provisions of the DGCL and such certificate of incorporation.

(b)The parties hereto shall take all actions necessary so that the bylaws of the Company in effect immediately prior to the Effective Time shall, from and after the Effective Time, be amended in their entirety in the form of the bylaws of Merger Sub as in effect immediately prior to the Effective Time (except that all references to the name of Merger Sub shall be changed to refer to the name of the Company), until thereafter amended in accordance with the applicable provisions of the DGCL, the certificate of incorporation of the Surviving Corporation and such bylaws.

Section 2.03.   Directors and Officers of the Surviving Corporation .  

(a)At the Effective Time, by virtue of the Merger, the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation immediately after the Effective Time, each to hold office in accordance with the certificate of

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

incorporation and bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

(b)At the Effective Time, by virtue of the Merger, the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation immediately after the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors are duly appointed or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

Section 2.04.   Conversion of Shares .  At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Purchaser, Merger Sub, the Company or the holders of any of the following securities:

(a)except for Disregarded Shares and Dissenting Shares, each share of Series B Preferred Stock issued and outstanding immediately prior to the Effective Time shall be converted into and shall become the right to receive (i) the Series B Original Issue Price (as defined in the Certificate of Incorporation) plus an amount equal to all cumulative dividends accrued and unpaid (including all Accruing Dividends (as defined in the Certificate of Incorporation) then accrued) on such share of Series B Preferred Stock plus all other declared and unpaid dividends on such shares (with respect to each share of Series B Preferred Stock, the “ Per Share Series B Liquidation Preference ”, and with respect to all shares of Series B Preferred Stock, the “ Aggregate Series B Liquidation Preference ”); provided that the Aggregate Series B Liquidation Preference shall in no event exceed the Maximum Series B Liquidation Preference, and the Per Share Series B Liquidation Preference shall be proportionately reduced as necessary to give effect to the same, and (ii) a portion of the Common Merger Consideration as provided in Section 2.04(c), and as of the Effective Time, all such shares of Series B Preferred Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Series B Preferred Stock in accordance with this Agreement;

(b)except for Disregarded Shares and Dissenting Shares, each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time shall be converted into and shall become the right to receive (i) the Series A Original Issue Price (as defined in the Certificate of Incorporation) plus an amount equal to all cumulative dividends accrued and unpaid (including all Accruing Dividends (as defined in the Certificate of Incorporation) then accrued) on such share of Series A Preferred Stock plus all other declared and unpaid dividends on such shares (with respect to each share of Series A Preferred Stock, the “ Per Share Series A Liquidation Preference ”, and with respect to all shares of Series A

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Preferred Stock, the “ Aggregate Series A Liquidation Preference ”); provided that the Aggregate Series A Liquidation Preference shall in no event exceed the Maximum Series A Liquidation Preference, and the Per Share Series A Liquidation Preference shall be proportionately reduced as necessary to give effect to the same, and (ii) a portion of the Common Merger Consideration as provided in Section 2.04(c), and as of the Effective Time, all such shares of Series A Preferred Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Series A Preferred Stock in accordance with this Agreement;

(c)except for Disregarded Shares and Dissenting Shares, each share of Company Stock issued and outstanding immediately prior to the Effective Time shall be converted into and shall become the right to receive (i) the Per Share Closing Cash Consideration, (ii) the Per Share Adjustment Consideration, (iii) the Per Share Escrow Release Amount, (iv) Per Share Equityholders’ Representative Fund Release Amount and (v) the Per Share Earn-Out Payments (collectively for all Company Stock other than Disregarded Shares and Dissenting Shares, the “ Common Merger Consideration ”), and as of the Effective Time, all such shares of Company Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist and shall thereafter represent only the right to receive the portion of the Merger Consideration to be paid to the holders of Company Stock in accordance with this Agreement;

(d)each share of Company Stock held by the Company (including as treasury stock) (collectively, the “ Disregarded Shares ”) immediately prior to the Effective Time shall be canceled without any conversion thereof and shall cease to exist, and no consideration shall be delivered or receivable with respect thereto;

(e)each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation, with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and

(f)notwithstanding the foregoing, (i) in lieu of a portion of the Merger Consideration that would otherwise have been payable in cash at the Closing to the Payments Administrator, for the benefit of the Equityholders listed on Schedule II , Parent shall deliver to each Equityholder listed on Schedule II the number of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II as provided in Section 2.06(c) and (ii) the amount of the Merger Consideration that would otherwise have been payable in cash at the Closing to the Payments Administrator, for the benefit of the Equityholders listed on Schedule II , shall be reduced by an amount equal to the Market Price multiplied by the Closing Stock Consideration to which each such Equityholder is entitled.

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

(g)At least 15 Business Days prior to the Closing Date, the Company shall deliver to Parent and Purchaser an updated version of Schedule II reflecting only the number of shares of Parent Common Stock to be issued to each Equityholder listed therein, which updated version of Schedule II shall provide for Parent Common Stock with a Market Price of $50,000,000 to be issued to one or more Equityholders who (i) have current W-2s on file with the Company evidencing that such Equityholders are “accredited investors” as that term is defined in Rule 501 of Regulation D of the Securities Act or deliver evidence reasonably satisfactory to Parent that such Equityholders are “accredited investors” (including a letter from each such Equityholder’s independent certified public accountant certifying that such Equityholder is an “accredited investor”) and (ii) have delivered to Parent a Written Consent and Support Agreement duly executed by each such Equityholder.

Section 2.05.   Dissenters’ Rights .  (a)  Notwithstanding the foregoing provisions of this Agreement to the contrary, other than as provided in this Section 2.05(a), any shares of Company Stock that are issued and outstanding immediately prior to the Effective Time and are held by a holder who (i) has duly and validly demanded appraisal of such shares in connection with the Merger in accordance with DGCL and (ii) as of the Effective Time, has not effectively withdrawn or lost such appraisal rights (through failure to perfect or otherwise) (such shares, the “ Dissenting Shares ”) shall not be converted into or represent the right to receive any portion of the Merger Consideration, but instead shall be converted into the right to receive only such consideration as may be determined to be due with respect to such Dissenting Shares under DGCL.  From and after the Effective Time, the Dissenting Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and a holder of Dissenting Shares shall not be entitled to exercise any of the voting rights or other rights of a stockholder of the Surviving Corporation.  Parent and Purchaser shall be entitled to retain any Merger Consideration that otherwise would have been paid or delivered in respect of the Dissenting Shares pending resolution of the claims of such holders, and, subject to Section 2.05(b), no Equityholder shall be entitled to any portion of such retained Merger Consideration.

(b)Notwithstanding the provisions of Section 2.05(a), if any holder of shares of Company Stock who has duly and validly demanded appraisal of such shares in connection with the Merger in accordance with DGCL effectively withdraws or loses such appraisal rights (through failure to perfect or otherwise), then such shares shall no longer be Dissenting Shares and, as of the later of the Effective Time and the occurrence of such withdrawal or loss, such shares shall automatically be converted into the right to receive the applicable portion of the Merger Consideration, payable with respect to such shares pursuant to and in accordance with this Agreement.

(c)The Company shall give Purchaser prompt written notice of the receipt of any written notice of any demand for appraisal or intent to demand appraisal for any shares of Company Stock, withdrawals of such demands, and any other instruments served pursuant to

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

DGCL and received by the Company, the Payments Administrator or the Equityholders’ Representative that relate to any such demand for appraisal.  Notwithstanding anything in this Agreement to the contrary, Purchaser shall have the right and opportunity to participate in and direct all negotiations and proceedings with respect to any demand or threatened demand for appraisal in connection with the Merger, including those that take place prior to the Effective Time; provided that Purchaser shall not settle any such demand for appraisal without the prior written approval of the Equityholders’ Representative, which approval shall not be unreasonably withheld, conditioned or delayed.

Section 2.06.   Surrender and Payment .  (a) As promptly as practicable after the date of this Agreement, Purchaser and the Equityholders’ Representative shall enter into a payments administration agreement with the Payments Administrator (the “ Payments Agreement ”), on terms and conditions reasonably satisfactory to Purchaser, pursuant to which the Payments Administrator will agree to serve as payments administrator in connection with the transactions contemplated hereby.

(b)As promptly as practicable after the date of this Agreement, the Company shall cause the Payments Administrator to deliver, or cause to be delivered, to each holder of record of Company Stock a letter of transmittal in substantially the form attached hereto as Exhibit G (the “ Letter of Transmittal ”), to be completed and delivered by each Equityholder to effect the exchange of such Equityholder’s Company Stock for the payment of the portion of the Merger Consideration payable or deliverable pursuant to Section 2.04 in respect of each share of Company Stock represented thereby, without any interest thereon.  

(c)At the Closing, Parent, Purchaser or Merger Sub shall deliver or cause to be delivered (i) by wire transfer of immediately available funds to the Payments Administrator, for the benefit of the Equityholders entitled thereto, an amount in cash equal to the Aggregate Series A Liquidation Preference, the Aggregate Series B Liquidation Preference and the aggregate Per Share Closing Cash Consideration to be paid to the Equityholders in respect of the Certificates and the Uncertificated Shares in accordance with ‎Section 2.04 and the Allocation Schedule, as reduced by the Market Price of the aggregate Closing Stock Consideration as provided in Section 2.04(f) and (ii) to each Equityholder listed on Schedule II the number of shares of Parent Common Stock set forth opposite such Equityholder’s name on Schedule II (as modified pursuant to the terms of this Agreement).  

(d)Upon (i) surrender to the Payments Administrator of a certificate representing shares of Company Stock (“ Certificate ”), together with a properly completed and duly executed Letter of Transmittal or (ii) receipt by the Payments Administrator of such evidence of transfer as the Payments Administrator may reasonably require in the case of a book-entry transfer of uncertificated shares of Company Stock (“ Uncertificated Shares ”), an Equityholder whose shares of Company Stock have been converted into the right to receive the applicable portion of

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

the Merger Consideration shall be entitled (A) to promptly receive from the Payments Administrator the Per Share Series A Liquidation Preference, if any, the Per Share Series B Liquidation Preference, if any, and the Per Share Closing Cash Consideration, if any, payable for each such share of Company Stock represented by such Certificate or for each such Uncertificated Share pursuant to Section 2.04, as reduced by the Market Price of such Equityholder’s Closing Stock Consideration as provided in Section 2.04(f), (B) to promptly receive from the Payments Administrator such Equityholder’s Closing Stock Consideration, if any, and (C) to receive from the Payments Administrator the remainder of the Merger Consideration payable or deliverable, as applicable, for each such share in the manner and at (or promptly following) the times paid or delivered to the Payments Administrator, for the benefit of the Equityholders entitled thereto, as set forth in this Agreement and the Escrow Agreement.  Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share (other than Dissenting Shares) shall represent after the Effective Time for all purposes only the right to receive the applicable portion of the Merger Consideration and the Certificate or Uncertificated Share shall be canceled and cease to exist.

(e)If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to Purchaser any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of Purchaser that such Tax has been paid or is not payable.

(f)After the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Stock.  If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Purchaser, the Surviving Corporation or the Payments Administrator, they shall be canceled and exchanged for the Merger Consideration in accordance with this Agreement, including the procedures set forth in this ‎Article 2.  

(g)After the Effective Time and pending surrender and exchange of any Person’s Certificate(s) or Uncertificated Shares, a holder’s Certificate(s) or Uncertificated Shares shall be deemed for all purposes to evidence only such holder’s right to receive from the Payments Administrator the portion of the Merger Consideration into which such Company Shares shall have been converted by the Merger, and each holder of a Certificate or Uncertificated Share shall look only to the Payments Administrator for payment or delivery of the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement, in each case, in respect of such Company Shares, and may surrender such Certificate or transfer such Uncertificated Share to the Payments Administrator and (subject to applicable

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

abandoned property, escheat and similar Applicable Laws) receive in exchange therefor the portion of the Merger Consideration payable pursuant to Section 2.04 and the other amounts payable pursuant to this Agreement.

(h)Except as required by Applicable Law, no dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date after the Effective Time shall be paid to any Equityholder (whether surrendered or unsurrendered).

(i)All consideration paid in respect of the surrender or exchange of shares of Company Stock in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such shares of Company Stock.  If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation for any reason, they shall be canceled and submitted to the Payments Administrator for exchange as provided in this Section 2.06.

(j)Notwithstanding anything to the contrary, except as expressly provided in Section 10.02(b) (but subject to the limitations set forth in Article 10), in no event shall the aggregate amount required to be paid by Parent and Purchaser pursuant to this Agreement (including pursuant to Section 2.04, Section 2.06, Section 2.07, Section 2.08, Section 2.11 and Section 2.14) exceed (i) the Base Cash Consideration, plus (ii) the Final Adjustment Amount (which may be a negative number) plus (iii) to the extent payable, the Earn-Out Amounts.

Section 2.07.   Company Stock Options and Company Warrants .  (a) As of the Effective Time, each In-the-Money Company Stock Option (whether vested or unvested) that is outstanding as of immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of Parent, Purchaser, Merger Sub, the Company, any Option Holder or any other Person, be cancelled in exchange for the right to receive a portion of the Merger Consideration, without interest, equal to (A) the excess, if any, of (1) the Per Share Closing Cash Consideration over (2) the exercise price with respect to such In-the-Money Company Stock Option, (B) the Per Share Adjustment Consideration, (C) the Per Share Escrow Release Amount, (D) the Per Share Earn-Out Payments and (E) the Per Share Equityholders’ Representative Fund Release Amount, in each case, when, as and if payable pursuant to this Agreement.  As of the Effective Time, each Company Stock Option that is not an In-the-Money Company Stock Option shall be cancelled for no consideration.

(b)Parent and Purchaser agree that, to the extent permitted by the terms of the Company Stock Plan and the other Employee Plans, the Company may provide Option Holders with an opportunity to exercise no later than the date that is 10 Business Days prior to the Closing Date any outstanding Company Stock Options (whether vested or unvested), so long as in each case (i) such Company Stock Options are settled in shares of Company Common Stock (and not, for clarity, in cash or other property) and (ii) the Company and each Option Holder

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

settle in full their respective obligations in connection with such exercise, including by paying to the Company the applicable exercise price, no later than the date that is 10 Business Days prior to the Closing Date.

(c) Prior to the Effective Time, and subject to the reasonable review and approval of Purchaser, the Company shall have taken all actions necessary or advisable to effect the transactions anticipated by this Section 2.07 under the Company Stock Plan or any other Employee Plan, or any other Contracts (whether written or oral, formal or informal) relating thereto, including by delivering all required notices and obtaining any required consents necessary to effectuate the provisions of this Agreement.

(d)In accordance with the terms of each warrant to purchase shares of the Company’s capital stock (collectively, the “ Company Warrants ”), the Company shall ensure that each Company Warrant is either exercised in full or terminated prior to the Effective Time with no further Liability or obligation, directly or indirectly, of any kind thereunder on the part of any of the Acquired Companies, Parent or Purchaser.  Promptly following the date hereof, the Company shall give notice to each Warrant Holder of an outstanding unexercised Company Warrant that (i) such Company Warrants will not be assumed in connection with the transactions contemplated by this Agreement, (ii) in accordance with the terms of the applicable Company Warrant such Warrant Holder shall have a certain period of time upon receipt of such notice (which period of time will expire no later than the date that is 10 Business Days prior to the Closing Date) to exercise such Warrant Holder’s Company Warrants, including, if applicable, by net exercise, and (iii) any Company Warrants not exercised within the time period set forth in such notice will be canceled for no consideration.

(e)Notwithstanding anything herein to the contrary, any Merger Consideration required to be paid under this Agreement (whether by Parent, Purchaser the Surviving Corporation, the Escrow Agent or otherwise) to an Equityholder in respect of Company Stock Options (i) shall be subject to any withholding in accordance with Section 2.13 and (ii) if such Equityholder is an employee of any Acquired Company immediately prior to the Effective Time, shall, at Parent’s election, be made to (as directed by Parent), or withheld by, Parent or the Surviving Corporation for remittance to such Equityholder through Parent’s, Purchaser’s or the Surviving Corporation’s normal payroll or treasury functions, and the amount of Merger Consideration required to be delivered to the Payments Administrator shall be reduced by such amounts.

(f)It is the intent of the parties hereto that Out-of-the-Money Company Stock Options participate in any Earn-Out Payment to the extent that the Out-of-the-Money Company Stock Options would have been In-the-Money Company Stock Options if such Earn-Out Payment and all prior Earn-Out Payments had been included in the Merger Consideration paid on the Closing Date. Promptly after the date hereof, Parent, Purchaser and the Company will work in good faith

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

to implement a plan, which may be in the form of an amendment to this Agreement, to give effect to this Section 2.07(f) by providing for a portion of the amounts otherwise payable to holders of Company Stock hereunder to be paid to the holders of such Out-of-the-Money Company Stock Options if such Company Stock Options become In-the-Money Company Stock Options as a result of any Earn-Out Payments.  Between the date hereof and the Closing Date, Parent, Purchaser and the Company will discuss in good faith alternatives to the 280G waiver and shareholder approval process described in Section 5.10 to allow certain Company executives to exercise their Company Stock Options.

Section 2.08.   Deposit of the Escrow Amount and Equityholders’ Representative Fund .  (a)  At or immediately following the Closing, Parent shall deposit, or cause to be deposited, with the Escrow Agent, $2,500,000 (the “ Escrow Amount ”) by wire transfer of immediately available funds into a dedicated account established pursuant to the Escrow Agreement (the “ Escrow Account ”) for disbursement pursuant to this Agreement and Escrow Agreement.  Notwithstanding anything to the contrary herein, the portion of the Escrow Amount deposited with the Escrow Agent pursuant to ‎this Section 2.08(a) in respect of any Dissenting Shares shall be returned to Parent (or one of its designated Affiliates) upon written demand to the Escrow Agent, which demand may be made by Parent at any time after the date that is 180 days after the Effective Time, provided that the holders of the applicable Dissenting Shares have not previously withdrawn or lost appraisal rights under the DGCL, and the Equityholders’ Representative shall cooperate in providing the Escrow Agent with joint written instructions to effect the foregoing.

(b)At or immediately following the Closing, Parent shall deposit, or cause to be deposited, with the Equityholders’ Representative, $300,000 (the “ Equityholders’ Representative Fund ”) by wire transfer of immediately available funds into a segregated account designated by the Equityholders’ Representative (and set forth in the Allocation Schedule) to be held by the Equityholders’ Representative in accordance with the terms of this Agreement.

Section 2.09 .  Pre-Closing Estimates; Updated Allocation Schedule.   (a) No later than five Business Days prior to the Closing Date, the Company shall prepare and furnish to Purchaser a written statement (the “ Estimate Statement ”), setting forth in reasonable detail the Company’s good faith estimate of (i) Closing Working Capital (“ Estimated Closing Working Capital ”), (ii) Unpaid Transaction Expenses (“ Estimated Unpaid Transaction Expenses ”), (iii) Closing Indebtedness (“ Estimated Closing Indebtedness ”), (iv) Closing Cash (“ Estimated Closing Cash ”), (v) the Estimated Adjustment Amount, (vi) the Aggregate Series A Liquidation Preference, (vii) the Aggregate Series B Liquidation Preference and (viii) the aggregate Per Share Closing Cash Consideration, together with reasonable supporting documentation therefor, and an updated Allocation Schedule (using the same calculations and following the same methodologies set forth on Schedule I ).  Purchaser may until two Business Days prior to the Closing Date provide the Company with comments to the Estimate Statement and Allocation

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Schedule and the Company shall consider such comments in good faith.  The Company shall provide all supporting documentation reasonably requested by Purchaser in connection with Purchaser’s review of the preliminary and final Estimate Statement and Allocation Schedule.

(b)Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Parent, Purchaser, Merger Sub, the Surviving Corporation or any of their respective Affiliates, it is expressly acknowledged and agreed that the preparation of the Allocation Schedule and the allocation set forth therein are the sole responsibility of the Equityholders and that Parent, Purchaser, Merger Sub and their respective Affiliates shall be entitled to rely on the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and to make payments in accordance therewith and in no event shall Parent, Purchaser, Merger Sub or, after the Effective Time, the Surviving Corporation, or any of their respective Affiliates, have any Liability to any Person (including the Equityholders’ Representative and each of the Equityholders) in connection with any claims relating to any alleged inaccuracy or miscalculations in, or otherwise relating to, the preparation of the Allocation Schedule and the allocation set forth therein or payments made by any Person (including Parent, Purchaser, Merger Sub, the Surviving Corporation, the Escrow Agent, and their respective Affiliates) in accordance therewith.

Section 2.10 .  Post-Closing Statement.   (a) As promptly as practicable, but no later than 120 days after the Closing, Purchaser will prepare and deliver, or cause to be prepared and delivered, to the Equityholders’ Representative a statement setting forth Purchaser’s calculation of (i) Closing Working Capital, (ii) Unpaid Transaction Expenses, (iii) Closing Indebtedness, (iv) Closing Cash and (v) Final Adjustment Amount (the “ Post-Closing Statement ”). Following delivery of the Post-Closing Statement, the Equityholders’ Representative and its representatives and agents shall be given reasonable access (including electronic access, to the extent available) as they may reasonably require to the books and records of the Surviving Corporation and reasonable access to the personnel or representatives of the Surviving Corporation and Purchaser responsible for and knowledgeable about the preparation of the Post-Closing Statement as they may reasonably require, in each case for the purpose of reviewing the Post-Closing Statement and resolving any disputes pursuant to this Section 2.10; provided that any such access shall be during normal business hours and without undue interruption to the business of Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates, and, in the case of any work papers, subject to the auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants.

(b)If the Equityholders’ Representative disagrees with Purchaser’s calculation of any of the amounts set forth on the Post-Closing Statement, the Equityholders’ Representative may,

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

within 30 days after receipt of the Post-Closing Statement, deliver a written notice to Purchaser disagreeing with such calculation(s) and setting forth the Equityholders’ Representative’s calculation of such amount(s).  Any such notice of disagreement shall specify those items or amounts as to which the Equityholders’ Representative disagrees, and its alternative calculations with respect to each item set forth on the Post-Closing Statement, and the Equityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Post-Closing Statement, which shall be final, binding and conclusive for all purposes hereunder.  If the Equityholders’ Representative fails to deliver such a written notice within such 30-day period, the Equityholders’ Representative shall be deemed to have agreed to the Post-Closing Statement and items and amounts set forth therein, which shall be final, binding and conclusive for all purposes hereunder.

(c)If a notice of disagreement is duly delivered pursuant to Section 2.10(b), the Equityholders’ Representative and Purchaser shall, during the 30 days following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Final Amounts.  If, after the expiration of such period or any mutually agreed extension thereof, the Equityholders’ Representative and Purchaser are unable to reach such agreement on all such items and amounts, they shall promptly thereafter submit the remaining disputed items to Deloitte LLP (or, if such firm is unable or unwilling to act, such other independent accounting firm of nationally recognized standing as shall be mutually agreed upon in writing by Purchaser and the Equityholders’ Representative) (the “ Accounting Referee ”) for resolution.  In making such determination, the Accounting Referee (i) shall consider only those items or amounts in the Post-Closing Statement as to which the Equityholders’ Representative has disagreed and which have not been resolved prior to submission to the Accounting Referee, (ii) shall not be entitled to hold any hearings or take or order the taking of depositions or other testimony under oath and (iii) with respect to each matter submitted to it, shall not resolve such matter in a manner that is more favorable to Purchaser than the Post-Closing Statement or more favorable to the Equityholders’ Representative than the notice of disagreement.  The Accounting Referee is not authorized to, and shall not, make any other determination including (A) any determination with respect to any matter included in the Post-Closing Statement or the Equityholders’ Representative’s notice of disagreement that was not submitted for resolution to the Accounting Referee or (B) any determination as to compliance by the Company, any Equityholder, Parent, Purchaser, Merger Sub or the Surviving Corporation with any of its covenants in this Agreement.  Any disputes not within the scope of the disputes to be resolved by the Accounting Referee pursuant to this Section 2.10(c) (as well as any disputes about the scope of disputes to be resolved by the Accounting Referee pursuant to this Section 2.10(c)) shall be resolved pursuant to Section 12.07.

(d)The Accounting Referee shall deliver to the Equityholders’ Representative and Purchaser, as promptly as practicable and no later than 90 days after its appointment, a written report setting forth such determination which shall be final and binding upon the Equityholders’

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Representative, the Equityholders and Purchaser absent fraud or manifest error.  The dispute resolution by the Accounting Referee under this Section 2.10 shall constitute an expert determination and shall not constitute an arbitration.  The fees and expenses of the Accounting Referee shall be borne one-half by Purchaser, on the one hand, and one-half by the Equityholders’ Representative (on behalf of the Equityholders), on the other hand.

(e)The Equityholders’ Representative and Purchaser agree that they will cooperate and assist in the preparation and review of the Post-Closing Statement and the determination of the Final Amounts, including the making available of books, records, work papers and personnel.

Section 2.11 .  Adjustment of the Merger Consideration.   (a)  As soon as practicable (but in any event within five Business Days) after the final determination of the Final Amounts, the Equityholders’ Representative shall deliver to Purchaser an updated Allocation Schedule, which shall be updated solely to reflect the determination of the Final Amounts and shall otherwise include the same calculations and follow the same methodologies set forth on the initial Allocation Schedule.  Such updated Allocation Schedule shall also include a calculation of the Per Share Adjustment Consideration and the Per Share Escrow Release Amount, as applicable.

(b)Within five Business Days after the final determination of the Final Amounts:

(i)If (x) the Estimated Adjustment Amount exceeds (y) the Final Adjustment Amount (the amount of such excess, the “ Overpayment Amount ”), then Purchaser and the Equityholders’ Representative shall deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to pay to Purchaser from the Escrow Account the Overpayment Amount and, to the extent the amount available in the Escrow Account is less than the Overpayment Amount, the amount of any Earn-Out Payment required to be paid pursuant to Section 2.14 shall be permanently set-off against and reduced by the amount of such shortfall.  

(ii)If (x) the Final Adjustment Amount exceeds (y) the Estimated Adjustment Amount (the amount of such excess, the “ Underpayment Amount ”), then Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, an amount in cash, without interest, equal to the Underpayment Amount, and promptly after receipt by the Payments Administrator, Purchaser and the Equityholders’ Representative will instruct the Payments Administrator to pay such amounts to the Equityholders entitled thereto in accordance with their respective Per Share Adjustment Consideration.  Notwithstanding anything to the contrary herein, Purchaser shall not be required to make any payment pursuant to this Section 2.11(b)(ii) until the Equityholders’ Representative delivers to Purchaser an updated Allocation Schedule reflecting the Underpayment Amount and the Per Share Adjustment Consideration.

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

(iii)Thereafter, Purchaser and the Equityholders’ Representative shall deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to disburse to an account designated by the Payments Administrator, for the benefit of the Equityholders entitled thereto in accordance with their respective Per Share Escrow Release Amounts, any amounts remaining in the Escrow Account after giving effect to the foregoing clauses (i) and (ii) of this Section 2.11(b), and promptly after receipt by the Payments Administrator, the Purchaser and the Equityholders’ Representative will instruct the Payments Administrator to pay such amounts to the Equityholders entitled thereto, except that such joint written instruction shall provide that the portion of such amount payable to Option Holders who were employees of any Acquired Company as of or prior to the Closing Date shall instead be disbursed to an account designated by Purchaser for payment to the Option Holders as provided in Section 2.07(e).  Notwithstanding anything to the contrary herein, Purchaser shall not be required to give any instruction pursuant to this Section 2.11(b)(iii) until the Equityholders’ Representative delivers to Purchaser an updated Allocation Schedule reflecting the Underpayment Amount or Overpayment Amount, as applicable, and the Per Share Escrow Release Amount.

(c)“ Final Closing Working Capital ”, “ Final Unpaid Transaction Expenses ”, “ Final Closing Indebtedness ” and “ Final Closing Cash ” mean the Closing Working Capital, the Unpaid Transaction Expenses, Closing Indebtedness and Closing Cash, in each case, (i) as shown in Purchaser’s calculation delivered pursuant to Section 2.10(a), if no notice of disagreement with respect thereto is duly delivered pursuant to Section 2.10(b); or (ii) if such a notice of disagreement is delivered, (A) as agreed by Purchaser and the Equityholders’ Representative pursuant to Section 2.10(c) or (B) in the absence of such agreement, as shown in the Accounting Referee’s determination delivered pursuant to Section 2.10(d).

Section 2.12.   Lost Certificates .  If any Certificate shall have been lost, stolen or destroyed, upon (i) the making of an affidavit of that fact by the record holder thereof claiming such Certificate to be lost, stolen or destroyed and (ii) delivery of an otherwise duly completed and signed Letter of Transmittal in accordance with ‎Section 2.06(d) by such record holder, such record holder shall be entitled to receive the applicable portion of the Merger Consideration in respect of the shares of Company Stock represented by such Certificate, subject to the conditions set forth in, and otherwise in accordance with, this Agreement and the Letter of Transmittal; provided , however , that Parent may, in its discretion and as a condition precedent to the payment of any Merger Consideration, require such record holder to provide a customary bond or indemnity for the benefit of Parent and its Affiliates against any claim that may be made with respect to such Certificate.

Section 2.13 .  Withholding Rights.   Notwithstanding anything herein to the contrary, each of Parent, Purchaser, Merger Sub, the Surviving Corporation, the Escrow Agent and the

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Payments Administrator shall be entitled to deduct and withhold from the consideration otherwise payable or deliverable to any Person pursuant to this Agreement or any other Transaction Document such amounts as it is required to deduct and withhold with respect to the making of such payment or delivery under any provision of federal, state, local or foreign Tax law.  Any amounts so deducted and withheld shall be treated for all purposes of this Agreement and the other Transaction Documents as having been paid to the Person in respect of which such deduction and withholding was made.

Section 2.14.   Earn-Out Payments .

(a) Generally .  As additional consideration to the Equityholders hereunder, the Equityholders shall be entitled to receive additional cash payments equal to the Dark Fiber Earn-Out Amount, the First Small Cell Earn-Out Amount, the Second Small Cell Earn-Out Amount, the Renewal Earn-Out Amount and the Fiber Lateral Sale Contract Proceeds (each such payment, an “ Earn-Out Payment ”) as set forth in, and at the times and subject to the terms and conditions of, this Section 2.14.  Each Earn-Out Payment shall be paid as, if and when required by Section 2.14(g).  For illustrative purposes only, a sample calculation of the Dark Fiber Earn-Out Amount and the Second Small Cell Earn-Out Amount is attached hereto as Exhibit H .  

(b) Dark Fiber Earn-Out .  Promptly (and in any event within 20 days) following each Dark Fiber Earn-Out Measurement Date, Parent or Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, additional consideration equal to (i) $30,000,000 (the “ Maximum Dark Fiber Earn-Out Amount ”) multiplied by (ii) a fraction, the numerator of which is the number of sites (including customer-requested substitution sites) “accepted” (as such term is defined in the applicable Dark Fiber Contract) by customers pursuant to the Dark Fiber Contracts during the most recently completed Dark Fiber Earn-Out Measurement Period (without any duplication for sites taken into account in the determination of any previous Dark Fiber Earn-Out Amount) and the denominator of which is [*****] (the “ Dark Fiber Earn-Out Amount ”); provided that (i) if the number of sites “accepted” in the applicable Dark Fiber Earn-Out Measurement Period would, when taken together with the number of sites “accepted” during each preceding Dark Fiber Earn-Out Measurement Period, equal or exceed [*****], then the Dark Fiber Earn-Out Amount in respect of such Dark Fiber Earn-Out Measurement Period shall instead be equal to (A) the Maximum Dark Fiber Earn-Out Amount minus (B) the sum of all Dark Fiber Earn-Out Amounts previously paid pursuant to this Section 2.14(b) (without giving effect to Section 2.14(h)) and thereafter no additional amounts shall be payable pursuant to this Section 2.14(b), and (ii) the Dark Fiber Earn-Out Amount in respect of the final Dark Fiber Earn-Out Measurement Period shall be (A) the Maximum Dark Fiber Earn-Out Amount multiplied by a fraction, the numerator of which is the aggregate number of sites (including customer-requested substitution sites) “accepted” in each Dark Fiber Earn-Out Measurement Period, and the denominator of which is [*****], minus (B) the sum of all Dark Fiber Earn-Out Amounts previously paid pursuant to this Section 2.14(b)

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

(without giving effect to Section 2.14(h)).  Notwithstanding the foregoing, the number of sites “accepted” after December 31, 2020 shall only include sites that were in backlog under Contract as of December 31, 2020, and in no event shall the aggregate amount payable pursuant to this Section 2.14(b) exceed the Maximum Dark Fiber Earn-Out Amount.  For purposes of this Section 2.14(b), a “ Dark Fiber Earn-Out Measurement Date ” shall mean each of [*****], and a “ Dark Fiber Earn-Out Measurement Period ” shall mean the period from and excluding any Dark Fiber Earn-Out Measurement Date to and including the next succeeding Dark Fiber Earn-Out Measurement Date, except the initial Dark Fiber Earn-Out Measurement Period shall be the period from and including the Closing Date to and including the initial Dark Fiber Earn-Out Measurement Date; provided , however , that sites accepted under the Dark Fiber Contracts prior to the Closing Date shall be included in the Dark Fiber Earn-Out results and included in the initial Dark Fiber Earn-Out Measurement Period.

(c) First Small Cell Earn-Out .  If, on or prior to December 31, 2020, Small Cell Customers have “accepted” (as such term is used in the applicable Contract relating to such Small Cell Node) 375 Small Cell Nodes, in the aggregate, from Parent or any of its Subsidiaries (including Surviving Corporation), then Parent or Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, additional consideration of $20,000,000 (the “ First Small Cell Earn-Out Amount ”), which shall be paid promptly (and in any event within 20 days) following the date on which the First Small Cell Earn-Out Amount has been achieved; provided , that in no event will the aggregate amount payable pursuant to this Section 2.14(c) exceed the First Small Cell Earn-Out Amount. For clarification purposes, Small Cell Nodes accepted by Small Cell Customers of Company after the date hereof and prior to the Closing Date shall be included in the calculation of the First Small Cell Earn-Out Amount, but Small Cell Nodes accepted prior to the date hereof shall not be included in the calculation of the First Small Cell Earn-Out Amount unless such Small Cell Nodes are listed on Section 2.14(c) of the Company Disclosure Schedule.

(d) Second Small Cell Earn-Out .  Promptly (and in any event within 20 days) following each Second Small Cell Earn-Out Measurement Date, Parent or Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, additional consideration equal to (i) $60,000,000 (the “ Maximum Second Small Cell Earn-Out Amount ”) multiplied by (ii) a fraction, the numerator of which is the number of Small Cell Nodes “accepted” (as such term is used in the applicable Contract relating to such Small Cell Node) by a Small Cell Customer from Parent or any of its Subsidiaries (including the Surviving Corporation) during the most recently completed Second Small Cell Earn-Out Measurement Period (without any duplication for Small Cell Nodes taken into account in the determination of any previous Second Small Cell Earn-Out Amount) and the denominator of which is 2,800 (the “ Second Small Cell Earn-Out Amount ”); provided that in no event will the aggregate amount payable pursuant to this Section 2.14(d) exceed the Maximum Second Small Cell Earn-Out Amount.  For purposes of this Section 2.14(d), a “ Second Small Cell Earn-Out

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Measurement Date ” shall mean each of December 31, 2017, June 30, 2018, December 31, 2018, June 30, 2019, December 31, 2019, June 30, 2020 and December 31, 2020, and a “ Second Small Cell Earn-Out Measurement Period ” shall mean the period from and excluding any Second Small Cell Earn-Out Measurement Date to and including the next succeeding Second Small Cell Earn-Out Measurement Date, except the initial Second Small Cell Earn-Out Measurement Period shall be the period from and including the Closing Date to and including the initial Second Small Cell Earn-Out Measurement Date. For purposes of clarification, the Small Cell Nodes that are included in the calculation of the First Small Cell Earn-Out Amount shall also be included in the calculation of the Second Small Cell Earn-Out Amount, including those accepted by Small Cell Customers of Company after the date hereof and prior to the Closing Date, but Small Cell Nodes accepted prior to the date hereof shall not be included in the calculation of the Second Small Cell Earn-Out Amount unless such Small Cell Nodes are listed on Section 2.14(c) of the Company Disclosure Schedule.

(e) Renewal Earn-Out .  If, at any time after the date of this Agreement, but on or prior to December 31, 2020, the Company has entered into one or more Contracts with a service period of not less than [*****] from the effective date of each applicable Contract for the sites identified on ‎Section 2.14(e) of the Disclosure Schedule (the “ Renewal Sites ”) and the aggregate monthly billing rate set forth in such Contracts for the Renewal Sites (the “ Renewal Billing Amount ”) equals or exceeds [*****]% of the Renewal Baseline Amount, Parent or Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, additional consideration of $20,000,000 (the “ Maximum Renewal Earn-Out Amount ”), which shall be paid promptly (and in any event within 20 days) following the date on which the Maximum Renewal Earn-Out Amount has been achieved; provided that Parent will permit the Company to [*****]; provided, further , that until the earlier of (i) December 31, 2020 or (ii) the date when the Maximum Renewal Earn-Out Amount has been paid to the Payments Administrator for the benefit of the Equityholders entitled thereto, if on any Renewal Earn-Out Measurement Date, the aggregate Renewal Billing Amount equals or exceeds [*****]% of the Renewal Baseline Amount, but is less than [*****]% of the Renewal Baseline Amount, Parent or Purchaser shall promptly (and in any event within 20 days) pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, an amount equal to the Maximum Renewal Earn-Out Amount multiplied by a fraction, the numerator of which is equal to (x) the aggregate Renewal Billing Amount less (y) an amount equal to [*****]%  of the Renewal Baseline Amount, and the denominator of which is equal to [*****]% of the Renewal Baseline Amount (the “ Earn-Out Measurement Date Payment ”); provided that the Earn-Out Measurement Date Payment and the Maximum Renewal Earn-Out Amount shall be reduced by the amount of all previously paid Earn-Out Measurement Date Payments. In no event will the aggregate amount payable pursuant to this Section 2.14(e), including all Earn-Out Measurement Date Payments, exceed the Maximum Renewal Earn-Out Amount.  If, on any Renewal Earn-Out Measurement Date, the aggregate Renewal Billing Amount is less than [*****]% of the Renewal Baseline Amount, no amount shall be payable to or for the benefit of the Equityholders pursuant

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

to this ‎‎Section 2.14(e).  For purposes of this Section 2.14(e), a “ Renewal Earn-Out Measurement Date ” shall mean each of [*****].  For clarification purposes, if a new Contract includes a declining rate schedule, only the monthly billing rate that applies to the final period shall be used for purposes of calculating the Renewal Billing Amount.  A Renewal Site shall also include, without duplication, replacement Renewal Sites as may be permitted under the terms of the applicable customer Contract (e.g., portability) but only if such replacement Renewal Site is no less profitable than the original Renewal Site (taking into account any additional cost that may be required at the replacement Renewal Site and any additional charges to customer, if any).  For purposes of this ‎‎Section 2.14(e), the “ Renewal Baseline Amount ” means [*****].

(f) Fiber Lateral Sale Contract Proceeds .  In the event the proceeds in connection with the Fiber Lateral Sale Contract as more fully described in Section 2.14(f) of the Company Disclosure Schedule (the “ Fiber Lateral Sale Contract ”) are paid after the Closing Date, then Parent or Purchaser shall pay, or cause to be paid, to the Payments Administrator, for the benefit of the Equityholders entitled thereto, the amount of any such proceeds received after the Closing Date by the Company, Parent, Purchaser or any Acquired Company in connection with the same (the “ Fiber Lateral Sale Contract Proceeds ”) promptly (and in any event within 20 days) following receipt by the Company.

(g) Form of Payment .  Parent and Purchaser’s obligations pursuant to this Section 2.14 may be satisfied, at Parent’s option, by payment of cash or a combination of cash and newly issued shares of Parent Common Stock (valued at the Market Price), in each case to the Payments Administrator, for the benefit of the Equityholders entitled thereto; provided that at least 50% of the aggregate amount of the Earn-Out Payments shall be satisfied in cash.  The Payments Administrator shall pay or deliver (as applicable) to the Equityholders entitled thereto any Earn-Out Payments in accordance with their respective Pro Rata Shares promptly after such Earn-Out Payments are received by the Payments Administrator.  

(h) Right of Set-Off .  In addition to any other rights Parent, Purchaser and, after the Effective Time, the Surviving Corporation, may have under this Agreement, Parent, Purchaser and the Surviving Corporation shall have the right to permanently reduce, and set-off against, any Earn-Out Payment required to be paid pursuant to this Section 2.14 by the Overpayment Amount to the extent the funds available in the Escrow Account are insufficient to pay the Overpayment Amount.

(i) Tax Treatment of Earn-Out Payments .  For U.S. federal income tax purposes, any payment of an Earn-Out Payment to the Equityholders shall, to the extent consistent with Applicable Law, be treated as additional purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state, or local law, as appropriate (subject to imputation of interest under Section 483 or Section 1274 of the Code).

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

(j) Dispute Resolution .

(i)Within 30 days of the delivery by Parent or Purchaser of any report required by Section 8.07, the Equityholders’ Representative may deliver a written notice to Parent or Purchaser disputing the data, calculations or information set forth in such report (an “ Earn-Out Dispute Notice ”).  Any such Earn-Out Dispute Notice shall specify those items or amounts as to which the Equityholders’ Representative disagrees, and its alternative calculations with respect to each such item.  If the Equityholders’ Representative fails to deliver an Earn-Out Dispute Notice within such 30-day period, the Equityholders’ Representative shall be deemed to have agreed to such reports and the items and amounts set forth therein, which shall be final, binding and conclusive for all purposes hereunder.  Upon the delivery of an Earn-Out Dispute Notice, Parent, Purchaser and the Equityholders’ Representative shall work in good faith to resolve such objections set forth in the Earn-Out Dispute Notice for a period of 30 days after the delivery of such Earn-Out Dispute Notice.

(ii)If Parent, Purchaser and the Equityholders’ Representative do not reach a resolution of such objections set forth in the Earn-Out Dispute notice within such 30-day period, then Parent, Purchaser and the Equityholders’ Representative shall submit the remaining objections (the “ Earn-Out Dispute ”) to binding arbitration conducted in Pinellas County, Florida, in accordance with, and pursuant to, the rules of JAMS then in effect (the “ JAMS Rules ”).  

(iii)Any such arbitration will be conducted before a single arbitrator mutually agreed by Purchaser and the Equityholders’ Representative, or, if Purchaser and the Equityholders’ Representative are unable to mutually agree within 10 days of the submission of the Earn-Out Dispute to JAMS, a single arbitrator selected in accordance with the JAMS Rules. Any disputes not within the scope of the disputes to be resolved by the arbitrator pursuant to this Section 2.14(j)(iii) (as well as any disputes about the scope of disputes to be resolved by the arbitrator pursuant to this Section 2.14(j)(iii)) shall be resolved pursuant to Section 12.07.

(iv)Upon the conclusion of any arbitration proceedings hereunder, the arbitrator will render findings of fact and conclusions of law and a written opinion setting forth the basis and reasons for any decision reached and will deliver such documents to each of Parent, Purchaser and the Equityholders’ Representative, along with a signed copy of the award.  The arbitrator may not award punitive damages.

(v)Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the subject matter thereof.  The arbitrator shall have the authority to grant any equitable and legal remedies that would be available in any

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

judicial proceeding instituted to resolve an Earn-Out Dispute.  Said court in making the determination of whether to confirm or modify the award or remedies, can review the merits, reasoning or application of law made by the arbitrator.

(vi)The arbiter will award to the prevailing party all costs, fees and expenses related to the arbitration of the Earn-Out Dispute, including reasonable fees and expenses of attorneys, accountants, and other professionals incurred by the prevailing party.  

Section 2.15.   Equityholders’ Representative Fund; Exculpation and Indemnification .

(a)The Equityholders’ Representative shall be entitled to withdraw cash amounts held in the Equityholders’ Representative Fund for (i) the reimbursement of out of pocket fees and expenses (including fees to legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Equityholders’ Representative in performing its duties under this Agreement and the ancillary agreements contemplated hereby, including the Escrow Agreement.  The Equityholders’ Representative Fund shall be held by the Equityholders’ Representative in a segregated bank account and the Equityholders’ Representative will hold the Equityholders’ Representative Fund separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy.  The Equityholders’ shall earn no interest or earnings on the Equityholders’ Representative Fund and irrevocably transfer and assign to the Equityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings.  For tax purposes, the Equityholders’ Representative Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.

(b)The Equityholders’ acknowledge that the Equityholders’ Representative is not providing any investment supervision, recommendations or advice.  The Equityholders’ Representative shall have no responsibility or liability for any loss of principal of the Equityholders’ Representative Fund other than as a result of the Equityholders’ Representative’s gross negligence or willful misconduct.  The Equityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Equityholders’ Representative Fund, and has no tax reporting or income distribution obligations hereunder.

(c)As soon as reasonably determined by the Equityholders’ Representative that the Equityholders’ Representative Fund is no longer required to be withheld, the Equityholders’ Representative shall deliver (i) to the Payments Administrator and Purchaser an updated Allocation Schedule, which shall be updated solely to reflect the Equityholders’ Representative Fund Balance and shall otherwise include the same calculations and follow the same methodologies set forth on the initial Allocation Schedule and (ii) to the Payments Administrator, an amount in cash, without interest, equal to the Equityholders’ Representative Fund Balance, and promptly after receipt by the Payments Administrator, Purchaser and the Equityholders’ Representative will instruct the Payments Administrator to pay such amounts to

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

the Equityholders entitled thereto in accordance with their respective Per Share Equityholders’ Representative Fund Release Amount.

(d)The Equityholders’ Representative will incur no liability of any kind with respect to any action or omission by the Equityholders’ Representative in connection with the Equityholders’ Representative’s services pursuant to this Agreement and the agreements ancillary hereto, except in the event of liability directly resulting from the Equityholders’ Representative’s gross negligence or willful misconduct.  The Equityholders, severally and not jointly (based on each Equityholder’s Pro Rata Share compared to the aggregate of the Pro Rata Shares of all Equityholders), will indemnify, defend and hold harmless the Equityholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “ Representative Losses ”) arising out of or in connection with the Equityholders’ Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Equityholders’ Representative, the Equityholders’ Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholders’ Representative by the Equityholders, any such Representative Losses may be recovered by the Equityholders’ Representative from (i) the funds in the Equityholders’ Representative Fund, (ii) the amounts in the Escrow Account at such time as remaining amounts would otherwise be distributable to the Equityholders (but only after any amounts owing or that may become owing to Purchaser or any of its Affiliates from the Escrow Account have been paid), and (iii) from any Earn-Out Payments at such time as any such amounts would otherwise be distributable to the Equityholders; provided , that while this section allows the Equityholders’ Representative to be paid from the Equityholders’ Representative Fund, the Escrow Account and the Earn-Out Payments, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Equityholders’ Representative from seeking any remedies available to it at law or otherwise. The Equityholders acknowledge that the Equityholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of its duties as the Equityholders’ Representative hereunder.  The foregoing indemnities will survive the Closing, the resignation or removal of the Equityholders’ Representative or the termination of this Agreement.

(e)Notwithstanding anything to the contrary, in no event shall Parent, Purchaser, Merger Sub or any of their respective Affiliates (other than any Affiliates that are also Equityholders, solely in their capacity as such) have any Liability to the Equityholders’

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Representative in connection with the transactions contemplated by this Agreement, including for any Representative Loss, for which the Equityholders’ Representative’s sole recourse shall be to the Equityholders as set forth in Section 2.15(d).

Article 3
Representations and Warranties of the Company

Subject to Section 12.03, except as set forth in the Company Disclosure Schedule, the Company represents and warrants to Parent, Purchaser and Merger Sub as of the date hereof and as of the Closing Date that:

Section 3.01 .  Existence and Power .  The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all corporate power and authority to own or lease its properties and to conduct its business as now conducted.  The Company is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.  The Company has all material governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted.  The Company has prior to the date hereof made available to Purchaser and Merger Sub true and complete copies of its Governing Documents as currently in effect.

Section 3.02.   Authorization .  The execution, delivery of, and performance by the Company of its obligations under, this Agreement and the other Transaction Documents to which it is or will be a party, and the consummation of the transactions contemplated hereby and thereby, are within the Company’s corporate powers and have been duly and validly authorized and approved by all necessary corporate action on the part of the Company.  This Agreement has been (and each of the other Transaction Documents to which the Company is or will be a party will be at or prior to the Closing) duly executed and delivered by the Company and constitutes (or will constitute when so executed) a valid and binding agreement of the Company enforceable against it in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).  The Required Stockholder Vote is the approval or consent of the Acquired Companies or the holders of the Acquired Companies’ capital stock or other equity of the Acquired Companies necessary in connection with the execution and delivery of, or the performance by the Company of its obligations under, this Agreement and the Transaction Documents to which it is or will be a party, or the consummation of the transactions contemplated hereby or thereby, and there are no votes, approvals, consents or other proceedings of the stockholders of any of the Acquired Companies or otherwise (other than those that have

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

been obtained prior to the execution of this Agreement) necessary in connection with the execution and delivery of, or the performance by the Company of its obligations under, this Agreement and the other Transaction Documents to which it is or will be a party, or the consummation of the transactions contemplated hereby or thereby (other than the filing and recordation of the Certificate of Merger and such other documents as required by the DGCL).  The Board of Directors of the Company has unanimously (a) declared that the Merger and the other transactions contemplated by this Agreement and the other Transaction Documents are advisable, fair to and in the best interests of the Company and its stockholders, (b) approved this Agreement and the other Transaction Documents in accordance with the provisions of the DGCL, (c) directed that this Agreement and the other Transaction Documents and the Merger and the other transactions contemplated hereby and thereby be submitted to the stockholders of the Company for their adoption and approval by written consent and (d) resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the other Transaction Documents and the approval of the Merger and the other transactions contemplated hereby and thereby.  The Written Consent and Support Agreement, when executed and delivered, shall constitute a valid, irrevocable and effective adoption of this Agreement and the other Transaction Documents by the Required Stockholder Vote in compliance with Applicable Law and the Company’s Governing Documents.  The transactions contemplated by this Agreement and the other Transaction Documents constitute a “Deemed Liquidation Event” pursuant to the Certificate of Incorporation and the Merger Consideration has been allocated in the manner specified in the Certificate of Incorporation.

Section 3.03 .  Governmental Authorization.   The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby require no consent, approval, authorization or permit of, or filing with or notification to, or other action in respect of, any Governmental Authority other than (i) the filing of the Certificate of Merger with the Delaware Secretary of State in accordance with Section 2.01(d) and the DGCL, (ii) compliance with any applicable requirements of the HSR Act, (iii) the filings in respect of the Required Governmental Approvals, and receipt of the consents, approvals, waivers, licenses and authorizations contemplated thereby, (iv) any consent, approval, authorization or permit required to be obtained solely by reason of Parent’s, Purchaser’s or the Merger Sub’s (as opposed to any other third party’s) participation in the transactions contemplated by this Agreement or any Transaction Document and (v) any actions or filings the absence of which, individually or in the aggregate, would not reasonably be expected to be material to the Acquired Companies, taken as a whole, or prevent, enjoin or materially delay the consummation of the transactions contemplated by, or the performance by the Company of its obligations under, this Agreement and the other Transaction Documents.

Section 3.04.   Noncontravention .  Except as set forth on Section 3.04 of the Company Disclosure Schedule, the execution, delivery and performance by the Company of this

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and by the other Transaction Documents do not and will not (i) violate any provision of any Governing Document of any Acquired Company, (ii) assuming compliance with the matters referred to in Section 3.03, violate any Applicable Law, (iii) result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of any Acquired Company, or (iv) require any consent from or other action by any Person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a violation or breach of, or give rise to any right of termination, modification, cancellation or acceleration of, any right or obligation of any Acquired Company or to a loss of any benefit to which any Acquired Company is entitled under any provision of any Contract of any Acquired Company, with only such exceptions, in the case of clauses (ii), (iii) and (iv), as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, or prevent, enjoin or materially delay the consummation of the transactions contemplated by, or the performance by the Company of its obligations under, this Agreement and the other Transaction Documents.

Section 3.05 .  Capitalization .  (a) The authorized capital stock of the Company consists solely of 370,000,000 shares of Company Common Stock and 330,000,000 shares of Company Preferred Stock (of which 245,000,000 shares are designated Series A Preferred Stock and 85,000,000 shares are designated Series B Preferred Stock).  As of the date hereof, there are outstanding (i) 2,013,007 shares of Company Common Stock and 330,000,000 are reserved for the purpose of effecting the conversion of Company Preferred Stock, (ii) 237,795,858 shares of Series A Preferred Stock, (iii) 76,638,875 shares of Series B Preferred Stock, (iv) Company Stock Options to purchase an aggregate of 27,709,995 shares of Company Common Stock and (v) Company Warrants to purchase an aggregate of 2,778,902 shares of Series A Preferred Stock and an aggregate of 392,073 shares of Series B Preferred Stock.  Section 3.05(a) of the Company Disclosure Schedule sets forth a true and complete list of the record and beneficial owners of each share of Company Common Stock, Series A Preferred Stock, Series B Preferred Stock, Company Stock Option and Company Warrant, including in the case of each Company Stock Option and Company Warrant, the name of each record holder, the date of grant, exercise price, vesting schedule (including whether any portion of the Company Stock Option will vest as a result of the transactions contemplated by this Agreement and the other Transaction Documents), the number of shares of Company Common Stock subject to each such Company Stock Option or shares of Preferred Stock, subject to each such Company Warrant and the exercise price of each such Company Stock Option or Company Warrant, as applicable.  Five Business Days prior to the Closing Date, the Company will provide Purchaser with a revised version of Section 3.05(a) of the Company Disclosure Schedule, updated as of such date.  The Allocation Schedule (including any update thereto) is and will be true and correct in all respects as of the date thereof.

(b)All of the outstanding capital stock, equity interests, voting securities or other ownership interests in the Company have been duly authorized and validly issued and are fully

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

paid and nonassessable and have not been issued in violation of any preemptive or similar rights.  Except as set forth in Section 3.05(a), there are no authorized, issued, reserved for issuance or outstanding (i) shares of capital stock, equity interests, voting securities or other ownership interests of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock, equity interests, voting securities or other ownership interests of the Company or (iii) options, warrants, restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or other similar securities or rights to acquire from the Company, or other obligation of the Company to issue, or rights relating to, any of the foregoing (the items in Sections 3.05(b)(i), 3.05(b)(ii) and 3.05(b)(iii) being referred to collectively as the “ Company Securities ”).  Except as set forth in the Company’s Certificate of Incorporation or on Section 3.05(b)(i) of the Company Disclosure Schedule, there are no outstanding obligations of any of the Acquired Companies to repurchase, redeem or otherwise acquire any Company Securities, and there are no voting trusts, shareholder agreements, pooling agreements, proxies or other Contracts in effect with respect to the voting or transfer of any Company Securities.  Other than this Agreement or as set forth on Section 3.05(b)(ii) of the Company Disclosure Schedule, there are no agreements or other instruments relating to the issuance, sale or transfer of any Company Securities.

(c)The Company has caused to be taken all such actions as are necessary or appropriate to provide for the treatment of all Company Stock Options in accordance with Article 2.

(d)No Company Securities are owned by any Acquired Company.

Section 3.06.   Subsidiaries .  (a) Each Subsidiary of the Company is a corporation, limited liability company or other entity duly incorporated or formed, validly existing and (where applicable) in good standing under the laws of its jurisdiction of incorporation.  

(b)Each Subsidiary of the Company (i) has all powers and all material governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, (ii) is duly qualified to do business as a foreign corporation or other entity and (iii) is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.  Each Subsidiary of the Company, its jurisdiction of incorporation or formation, each jurisdiction where such Subsidiary is qualified to do business as a foreign entity, the number and type of any authorized, issued or outstanding Subsidiary Securities (and, with respect to issued or outstanding Subsidiary Securities, the holders thereof), is set forth on Section 3.06(b) of the Company Disclosure Schedule.  The Company has prior to the date hereof provided to Purchaser true and complete copies of the Governing Documents of each of the Company’s Subsidiaries

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

(c)All of the outstanding capital stock, equity interests, voting securities or other ownership interests in each Subsidiary of the Company is owned by the Company, directly or indirectly, free and clear of any Lien (other than Liens that will be extinguished prior to the Effective Time), and has been duly authorized and validly issued and is fully paid and nonassessable and has not been issued in violation of any preemptive or similar rights.  Except as set forth on Section 3.06(b) of the Company Disclosure Schedule, there are no authorized, issued, reserved for issuance or outstanding (i) shares of capital stock, equity interests, voting securities or other ownership interests of any of the Company’s Subsidiaries, (ii) securities of any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock, equity interests, voting securities or other ownership interests of any of the Company’s Subsidiaries or (iii) options, warrants, restricted shares, restricted stock units, stock appreciation rights, performance units, contingent value rights, “phantom” stock or other similar securities or rights to acquire from any Acquired Company, or other obligation of any Acquired Company to issue, or rights relating to, any of the foregoing (the items in Sections 3.06(c)(i) and 3.06(c)(ii) being referred to collectively as the “ Subsidiary Securities ”).  There are no outstanding obligations of any of the Acquired Companies to repurchase, redeem or otherwise acquire any Subsidiary Securities, and there are no voting trusts, shareholder agreements, pooling agreements, proxies or other Contracts in effect with respect to the voting or transfer of any Subsidiary Securities.  Other than this Agreement, there are no agreements or other instruments relating to the issuance, sale or transfer of any Subsidiary Securities.

(d)Except as set forth on Section 3.06(b) of the Company Disclosure Schedule, no Acquired Company owns or controls, directly or indirectly, any capital stock, equity interests, voting securities or other ownership interests in any Person, and no Acquired Company is, directly or indirectly, a participant in any joint venture, partnership or similar arrangement.

Section 3.07.   Financial Statements .  The audited consolidated balance sheets as of December 31, 2013, 2014 and 2015, the related audited consolidated statements of income, equity, deficit and cash flows for each of the years then ended (together with the notices thereto and accompanied by unqualified opinions of the independent accountants, the “ Audited Financial Statements ”), the unaudited interim consolidated balance sheet as of March 31, 2016 and the related unaudited interim consolidated statements of operations, equity, deficit and cash flows for the three months then ended of the Acquired Companies (the “ Unaudited Financial Statements ”, and together with the Audited Financial Statements, the “ Financial Statements ”) fairly present, in conformity with GAAP applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Acquired Companies as of the dates thereof and their consolidated results of operations, equity, deficit and cash flows for the periods then ended (subject, in the case of any Unaudited Financial Statements, to normal year-end adjustments which are not material in the aggregate and the absence of footnote disclosures and other presentation items in the case of any Unaudited Financial Statements).  The Company has made available to Purchaser prior to the date hereof true and complete copies of

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CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[*****]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

each of the Financial Statements.  Section 3.07 of the Disclosure Schedule accurately describes the aggregate amount of any obligations of the Acquired Companies in respect of deferred revenue, deferred rent, accrued com


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