Exhibit (a)(1)(E)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined
below). The Offer (as defined below) is made solely by the Offer to Purchase (as defined below), dated March 8, 2024, and the related Letter of Transmittal (as defined below) and any amendments or supplements thereto. The Offer is not being made
to, nor will tenders be accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction. In those jurisdictions where
applicable laws require that the Offer be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction
to be designated by Purchaser.
Notice of Offer to Purchase
All Outstanding Shares of Common Stock
of
NGM BIOPHARMACEUTICALS, INC.
at
An Offer Price of $1.55 per Share in Cash
Pursuant to the Offer to Purchase Dated March 8, 2024
by
ATLAS NEON MERGER SUB, INC.,
a wholly owned subsidiary of
ATLAS NEON PARENT, INC. an affiliate of
THE COLUMN GROUP, LP,
THE COLUMN GROUP GP, LP,
THE COLUMN GROUP II, LP,
THE COLUMN GROUP II GP, LP,
THE COLUMN GROUP MANAGEMENT, LP,
PONOI CAPITAL, LP,
PONOI MANAGEMENT, LLC,
PONOI CAPITAL II, LP,
PONOI II MANAGEMENT, LLC,
THE COLUMN GROUP III, LP,
THE COLUMN GROUP III-A, LP,
THE COLUMN GROUP III GP, LP,
THE COLUMN GROUP IV, LP,
THE COLUMN GROUP IV-A, LP,
THE COLUMN GROUP IV GP, LP,
TCG IV GP, LLC,
THE COLUMN GROUP OPPORTUNITY III, LP,
THE COLUMN GROUP OPPORTUNITY III GP, LP,
TCG OPPORTUNITY III GP, LLC,
PETER SVENNILSON,
DAVID V. GOEDDEL and
TIMOTHY KUTZKEY
Atlas Neon Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly owned
subsidiary of Atlas Neon Parent, Inc., a Delaware corporation (“Parent”), is offering to purchase (the “Offer”) all outstanding shares of common stock, par value $0.001 per share (“Shares”), of NGM Biopharmaceuticals, Inc., a Delaware corporation
(“NGM”), other than the Rollover Shares (as defined below), for $1.55 per Share in cash (the “Offer Price”), upon the terms and subject to the conditions described in the Offer to Purchase, dated March 8, 2024 (together with any amendments or
supplements thereto, the “Offer to Purchase”), and in the related letter of transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal”). Subject to the terms of the Agreement and Plan of Merger, dated as of February
25, 2024 (together with any amendments or supplements thereto, the “Merger Agreement”), among NGM, Parent and Purchaser, the Offer Price will be paid subject to any applicable tax withholding and without interest. Parent is an affiliate of The Column
Group, LP, The Column Group GP, LP, The Column Group II, LP, The Column Group II GP, LP, The Column Group Management, LP, Ponoi Capital, LP, Ponoi Management, LLC, Ponoi Capital II, LP, Ponoi II Management, LLC, The Column Group III, LP, The Column
Group III-A, LP, The Column Group III GP, LP, The Column Group IV, LP, The Column Group IV-A, LP, The Column Group IV GP, LP, TCG IV GP, LLC, The Column Group Opportunity III, LP, The Column Group Opportunity III GP, LP, TCG Opportunity III GP, LLC,
Peter Svennilson, David V. Goeddel and Timothy Kutzkey. Stockholders who hold their Shares through a broker, dealer, commercial bank or other nominee should consult with such institution as to whether it charges any service charges or commissions.
Concurrently with the execution of the Merger Agreement, Parent and Purchaser entered into a
rollover agreement, dated as of the date of the Merger Agreement (the “TCG Rollover Agreement”), with The Column Group, LP, The Column Group GP, LP, The Column Group Management, LP, The Column Group II, LP, The Column Group III, LP, The Column Group
III-A, LP, The Column Group IV, LP, The Column Group IV-A, LP, The Column Group Opportunity III, LP, Ponoi Capital, LP and Ponoi Capital II, LP (the “TCG Rollover Stockholders” and, together with The Column Group II GP, LP, The Column Group III GP,
LP, The Column Group IV GP, LP, TCG IV GP, LLC, The Column Opportunity III GP, LP, TCG Opportunity III GP, LLC, Ponoi Management, LLC, Ponoi II Management, LLC, David V. Goeddel, Timothy Kutzkey and Peter Svennilson, the “TCG Stockholders”) who in
the aggregate hold approximately 26% of NGM’s outstanding Shares. Parent and Purchaser are affiliates of the TCG Stockholders, and each TCG Stockholder is considered a co-offeror in the Offer. As co-offerors, each TCG Stockholder accepts joint
responsibility for the accuracy of the disclosures made in the Offer to Purchase. In addition, Parent and Purchaser are party to a rollover agreement, dated as of the date of the Merger Agreement (as supplemented by the joinder thereto, the
“Stockholder Rollover Agreement”), with certain of NGM’s other stockholders, including Mr. Rieflin, the Chairman of NGM’s board of directors, Dr. Goeddel, a member of NGM’s board of directors and Dr. Woodhouse, NGM’s Chief Executive Officer and a
member of NGM’s board of directors (collectively, the “Rollover Stockholders”), who in the aggregate hold approximately 22% of NGM’s outstanding Shares. Pursuant to the applicable Rollover Agreement, each of the TCG Rollover Stockholders and the
Rollover Stockholders have agreed, among other things, that they will not transfer or tender their Shares subject to the applicable Rollover Agreement (the “Rollover Shares”) in the Offer and that instead (i) such Rollover Shares will be contributed
to Parent immediately prior to the closing of the Merger, and (ii) in consideration for such contribution, Parent will issue common shares of Parent to each TCG Rollover Stockholder and Rollover Stockholder, as applicable, in accordance with the
terms of the applicable Rollover Agreement. Each Rollover Agreement provides that it will terminate in the event the Merger Agreement is terminated in accordance with its terms.
Concurrently with the execution of the Merger Agreement, and as a condition and inducement to
NGM’s willingness to enter into the Merger Agreement, certain of the TCG Stockholders, including The Column Group, LP, The Column Group GP, LP, The Column Group Management, LP, The Column Group II, LP, The Column Group III, LP, The Column Group
III-A, LP, The Column Group IV, LP, The Column Group IV-A, LP, The Column Group Opportunity III, LP, Ponoi Capital, LP and Ponoi Capital II, LP (each, a “Guarantor” and collectively, the “Guarantors”), have duly executed and delivered to NGM a
limited guaranty (the “Limited Guaranty”), dated as of the date of the Merger Agreement, in favor of NGM, in respect of certain obligations of Parent and Purchaser arising under, or in connection with, the Merger Agreement. The Guarantors’
obligations under the Limited Guaranty are subject to a cap of $10 million, subject to certain other terms and conditions.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE ONE MINUTE AFTER 11:59 P.M. EASTERN TIME ON
APRIL 4, 2024 (THE “EXPIRATION DATE”), UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The Offer is being made pursuant to the Merger Agreement, pursuant to which, after the
completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will be merged with and into NGM, with NGM being the surviving corporation and a wholly owned subsidiary of Parent after such merger (the “Merger”), and each
issued and outstanding Share (subject to certain exceptions) will, by virtue of the Merger, be converted into the right to receive an amount equal to the Offer Price, subject to any applicable tax withholding and without interest. As a result of the
Merger, NGM will cease to be a publicly traded company and will become wholly-owned by Parent. The Merger Agreement is more fully described in the Offer to Purchase.
Purchaser’s obligation to accept for payment Shares tendered in the Offer is subject to
conditions, including: (i) that the number of Shares validly tendered and not validly withdrawn, equals at least a majority of all Shares then outstanding owned by the Unaffiliated Stockholders (as defined below) (the “Minimum Tender Condition”),
(ii) the accuracy of NGM’s representations and warranties contained in the Merger Agreement (subject to certain exceptions and qualifications described in the Merger Agreement and the Offer to Purchase), (iii) NGM’s performance in all material
respects of its obligations under the Merger Agreement and (iv) the other conditions set forth in Exhibit A to the Merger Agreement. The obligations of Parent and Purchaser to consummate the Offer and the Merger under the Merger Agreement are
not subject to a financing condition. Purchaser expressly reserves the right, in its sole discretion, to: (i) waive, in whole or in part, any Offer Condition other than the Minimum Tender Condition and the Termination Condition, and/or (ii) modify
the terms of the Offer in a manner not inconsistent with the Merger Agreement, subject to certain exceptions described in the Merger Agreement and the Offer to Purchase.
The purpose of the Offer and the Merger is for Parent, through Purchaser, to acquire control
of, and the entire equity interest in, NGM. Following the consummation of the Offer, Purchaser intends to effect the Merger pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”) as promptly as practicable,
subject to the satisfaction of certain conditions. If the Merger is so effected pursuant to Section 251(h) of the DGCL, no vote of NGM’s stockholders will be required to adopt the Merger Agreement or consummate the Merger.
After careful consideration and upon the unanimous recommendation of a Special Committee
of the members of the NGM board of directors (the “NGM Board”), the members of the NGM Board (other than Messrs. Goeddel and Perlmutter, who recused themselves because of their relationship to the TCG Stockholders, and Mr. Rieflin, who recused
himself because he is a Rollover Stockholder) have unanimously adopted resolutions: (i) determining that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement (collectively, the “Transactions”) are fair
to and in the best interests of NGM and its stockholders, other than the TCG Stockholders, Parent, Purchaser, the Rollover Stockholders, the members of the NGM Board and the officers of NGM subject to Section 16 of the Securities Exchange Act of
1934, as amended (collectively, the “Unaffiliated Stockholders”), and (ii) authorizing and approving the execution, delivery and performance by NGM of the Merger Agreement and, subject to the terms and conditions of the Merger Agreement, the
consummation by NGM of the Transactions, (iii) declaring the Merger Agreement and the Transactions advisable and (iv) recommending that the Unaffiliated Stockholders accept the Offer and tender their Shares pursuant to the Offer, which resolutions
shall not be subsequently qualified, modified or withdrawn in any way, except in connection with a Superior Company Proposal (as such term is used in the Merger Agreement).
The Merger Agreement provides that, unless the Merger Agreement has been validly terminated
in accordance with its terms, Purchaser may elect to, and if so requested by NGM, as determined by Parent, will, extend the Offer: (A) for consecutive periods of up to 10 business days each (or for such longer period as may be agreed to by Parent and
NGM) if on any then scheduled Expiration Date, the Minimum Tender Condition has not been satisfied or any other Offer Condition (as defined in the Offer to Purchase) has not been satisfied or waived, to permit such Offer Condition to be satisfied
(but in the case of the Minimum Tender Condition being the only condition not satisfied, on no more than five occasions) or (B) for the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange
Commission or the staff thereof or Nasdaq applicable to the Offer, provided that in no event shall Parent or Purchaser be permitted or required to extend the Offer beyond June 15, 2024. Any extension will be followed as promptly as practicable by
public announcement thereof, such announcement to be made no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date.
For purposes of the Offer, if and when Purchaser gives oral or written notice to Equiniti
Trust Company (formerly known as American Stock Transfer & Trust Company, the “Depositary and Paying Agent”) of its acceptance for payment of such Shares pursuant to the Offer, then Purchaser has accepted for payment and thereby purchased Shares
validly tendered and not validly withdrawn pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price (subject to any
applicable withholding tax) therefor with the Depositary and Paying Agent, which will act as agent for the tendering stockholders for purposes of receiving payments from us and transmitting such payments to the tendering stockholders. Under no
circumstances will interest be paid on the Offer Price for Shares, regardless of any extension of the Offer or any delay in payment for Shares. Purchaser will pay for Shares tendered (and not validly withdrawn) pursuant to the Offer only after timely
receipt by the Depositary and Paying Agent of: (i) a timely Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to such Shares, (ii) a Letter of Transmittal, properly completed and duly executed, with any required signature
guarantees (or an Agent’s Message (as defined in the Offer to Purchase) in lieu of the Letter of Transmittal), and (iii) any other documents required by the Letter of Transmittal or any other customary documents required by the Depositary and Paying
Agent. Accordingly, tendering stockholders may be paid at different times depending upon when Book-Entry Confirmations with respect to Shares are actually received by the Depositary and Paying Agent.
Tenders of Shares pursuant to the Offer are irrevocable. However, a stockholder has
withdrawal rights that are exercisable until the expiration of the Offer (i.e., at any time prior to one minute after 11:59 p.m. Eastern Time on April 4, 2024), or in the event the Offer is extended, on such date and time to which the Offer is
extended. In addition, pursuant to Section 14(d)(5) of the Exchange Act, Shares may be withdrawn at any time after May 7, 2024, which is the 60th day after the date of
the commencement of the Offer, unless prior to that date Purchaser has accepted for payment the Shares validly tendered in the Offer. Withdrawals of tenders of Shares may not be rescinded, and any Shares properly withdrawn will be deemed not to have
been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by following one of the procedures for tendering Shares described in the Offer to Purchase at any time prior to the expiration of the Offer.
The receipt of the Offer Price in exchange for Shares pursuant to the Offer or the Merger
will, depending on the particular circumstances of each holder of Shares, generally be treated as a sale or exchange for U.S. federal income tax purposes or as a distribution with respect to such holder’s Shares. For a summary of the material U.S.
federal income tax consequences of the Offer and the Merger, see the Offer to Purchase. Holders of Shares should consult with their tax advisors regarding the U.S. federal income tax consequences of the Offer and the Merger, including federal
estate, gift and other non-income tax consequences, and tax consequences under state, local or non-U.S. tax laws.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General
Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.
The Offer to Purchase, the related Letter of Transmittal and the other exhibits to the
Schedule TO, and NGM’s Schedule 14D-9 and the Transaction Statement on Schedule 13E-3, contain important information and all documents should be read carefully and in their entirety before any decision is made with respect to the Offer.
Questions and requests for assistance may be directed to the Information Agent at the address
and telephone number set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Innisfree M&A Incorporated (the “Information Agent”) or to brokers, dealers, commercial banks or trust
companies. Such copies will be furnished promptly at Purchaser’s expense. Neither Parent nor Purchaser will pay any fees or commissions to any broker or dealer or to any other person (other than to the Depositary and the Information Agent) in
connection with the solicitation of tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th floor
New York, New York 10022
Shareholders may call toll free: (877) 800-5190
Banks and Brokers may call collect: 212-750-5833
March 8, 2024
Exhibit (c)
 |
Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
GuggenheimPartners.com |
February 25, 2024
The Special Committee of the Board of Directors
NGM Biopharmaceuticals, Inc.
333 Oyster Point Boulevard South
San Francisco, CA 94080
Members of the Special Committee:
We understand that Atlas Neon Parent, Inc. (“Parent”), an affiliate of
The Column Group, LLC (“TCG”), Atlas Neon Merger Sub, Inc., a wholly owned subsidiary of Parent (“Merger Sub”), and NGM Biopharmaceuticals, Inc. (“NGM”) intend to enter into an Agreement and Plan of Merger to be dated as of February 25, 2024 (the
“Agreement”) pursuant to which (i) Merger Sub will commence a tender offer to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share, of NGM (the “Shares” and, such tender offer, the “Offer”), other than Shares
(the “Rollover Shares”) owned by the Rollover Stockholders (as defined in the Agreement), at a price of $1.55 per Share in cash (the “Offer Price”) and (ii) following consummation of the Offer, (a) Merger Sub will merge with and into NGM (the
“Merger” and, taken together with the Offer as an integrated transaction, the “Transaction”) and NGM will become a wholly owned subsidiary of Parent and (b) pursuant to the Merger, each Share will be converted into the right to receive the Offer
Price without interest (the “Merger Consideration”). The terms and conditions of the Transaction are more fully set forth in the Agreement.
You have asked us to render our opinion as to whether the Offer Price
and the Merger Consideration to be received by the holders of Shares (other than (i) Shares owned by NGM immediately prior to the effective time of the Merger, (ii) Shares owned by Parent, Merger Sub or any other subsidiary of Parent at the
commencement of the Offer which are owned by Parent, Merger Sub or any other subsidiary of Parent immediately prior to the effective time of the Merger, (iii) Appraisal Shares (as defined in the Agreement) and (iv) Rollover Shares) are fair, from a
financial point of view, to such holders.
In connection with rendering our opinion, we have:
|
■ |
Reviewed a draft of the Agreement dated as of February 25, 2024; |
|
■ |
Reviewed certain publicly available business and financial information regarding NGM; |
|
■ |
Reviewed certain non-public business and financial information regarding NGM’s business, products,
product candidates, intellectual property and future prospects (including certain probability-adjusted financial projections for NGM on a stand-alone basis for the years ending December 31, 2024 through December 31, 2044 (the “NGM-Provided
Financial Projections”) and certain other estimates and other forward-looking information), all as prepared by, discussed with and approved for our use by NGM’s senior management (collectively, the “NGM-Provided Information”); |
The Special Committee of the Board of Directors
NGM Biopharmaceuticals, Inc.
February 25, 2024
Page 2
|
■ |
Discussed with NGM’s senior management their views of NGM’s business, operations, historical and
projected financial results, liquidity, funding needs, access to capital and future prospects (including, without limitation, their assumptions as to the expected amounts, timing and pricing of future issuances of equity in NGM) and the
commercial, competitive and regulatory dynamics in the biopharmaceutical sector; |
|
■ |
Performed financing-adjusted discounted cash flow analyses based on the NGM-Provided Financial
Projections; |
|
■ |
Reviewed the acquisition premia for certain mergers and acquisitions that we deemed relevant in
evaluating the Transaction; |
|
■ |
Reviewed the historical prices and trading activity of the Shares; and |
|
■ |
Conducted such other studies, analyses, inquiries and investigations as we deemed appropriate. |
With respect to the information used in arriving at our opinion:
|
■ |
We have relied upon and assumed the accuracy, completeness and reasonableness of all industry,
business, financial, legal, regulatory, tax, accounting, actuarial and other information provided by or discussed with NGM (including, without limitation, the NGM-Provided Information) or obtained from public sources, data suppliers and other
third parties. |
|
■ |
We (i) do not assume any responsibility, obligation or liability for the accuracy, completeness,
reasonableness, achievability or independent verification of, and we have not independently verified, any such information (including, without limitation, the NGM-Provided Information), (ii) express no view or opinion regarding (a) the
reasonableness or achievability of the NGM-Provided Financial Projections, any other estimates or any other forward-looking information provided by NGM or the assumptions upon which any of the foregoing are based or (b) the reasonableness of
the probability and financing adjustments reflected in the NGM-Provided Financial Projections and (iii) have relied upon the assurances of NGM’s senior management that they are unaware of any facts or circumstances that would make the
NGM-Provided Information incomplete, inaccurate or misleading. |
|
■ |
We (i) (a) have been advised by NGM’s senior management, and have assumed, that the NGM-Provided
Financial Projections (including the probability and financing adjustments reflected therein) have been reasonably prepared on bases reflecting the best currently available estimates and judgments of NGM’s senior management as to the expected
future performance of NGM on a stand-alone basis and (b) have assumed that the NGM-Provided Financial Projections have been reviewed by the Special Committee of the Board of Directors of NGM (the “Special Committee”) with the understanding that
such information will be used and relied upon by us in connection with rendering our opinion and (ii) have assumed that any financial projections/forecasts, any other estimates and/or any other forward-looking information obtained from public
sources, data suppliers and other third parties are reasonable and reliable. |
The Special Committee of the Board of Directors
NGM Biopharmaceuticals, Inc.
February 25, 2024
Page 3
During the course of our engagement, we were asked by the Special
Committee to solicit indications of interest from various potential third-party transaction counterparties regarding a potential extraordinary corporate transaction with or involving NGM, and we have considered the results of such solicitation
process in rendering our opinion.
In arriving at our opinion, we have not performed or obtained any
independent appraisal of the assets or liabilities (including any contingent, derivative or off-balance sheet assets and liabilities) of NGM or any other entity or the solvency or fair value of NGM or any other entity, nor have we been furnished with
any such appraisals. We are not legal, regulatory, tax, consulting, accounting, appraisal or actuarial experts and nothing in our opinion should be construed as constituting advice with respect to such matters; accordingly, we have relied on the
assessments of NGM’s senior management and other professional advisors with respect to such matters. We are not expressing any view or rendering any opinion regarding the tax consequences of the Transaction to NGM or its securityholders.
In rendering our opinion, we have assumed that, in all respects
meaningful to our analyses, (i) the final executed form of the Agreement will not differ from the draft that we have reviewed, (ii) NGM, Parent and Merger Sub will comply with all terms and provisions of the Agreement and (iii) the representations
and warranties of NGM, Parent and Merger Sub contained in the Agreement are true and correct and all conditions to the obligations of each party to the Agreement to consummate the Transaction will be satisfied without any waiver, amendment or
modification thereof. We also have assumed that the Transaction will be consummated in a timely manner in accordance with the terms of the Agreement and in compliance with all applicable legal and other requirements, without any delays, limitations,
restrictions, conditions, waivers, amendments or modifications (regulatory, tax-related or otherwise) that would have an effect on NGM, Parent, Merger Sub or the Transaction in any way meaningful to our analyses or opinion.
In rendering our opinion, we do not express any view or opinion as to
(i) the prices at which the Shares or other securities or financial instruments of or relating to NGM may trade or otherwise be transferable at any time, (ii) the potential effects of volatility in the credit, financial or equity markets on NGM, any
such other securities or financial instruments, the Transaction or the financing thereof or (iii) the impact of the Transaction on the solvency or viability of NGM or the ability of NGM to pay its obligations when they come due.
We have acted as a financial advisor to the Special Committee in
connection with the Transaction and will receive a customary fee for such services, a substantial portion of which is payable upon successful consummation of the Transaction and a portion of which is payable upon the rendering of our opinion. In
addition, NGM has agreed to reimburse us for certain expenses and to indemnify us against certain liabilities arising out of our engagement.
The Special Committee of the Board of Directors
NGM Biopharmaceuticals, Inc.
February 25, 2024
Page 4
As previously disclosed, aside from our current engagement by the
Special Committee, we have not been previously engaged during the past two years by NGM, nor have we been previously engaged during the past two years by TCG or Parent, to provide financial advisory or investment banking services for which we
received fees. We may in the future seek to provide NGM, TCG and Parent and their respective affiliates with financial advisory and investment banking services unrelated to the Transaction, for which services we would expect to receive compensation.
We and our affiliates and related entities engage in a wide range of
financial services activities for our and their own accounts and the accounts of customers, including but not limited to: asset, investment and wealth management; insurance services; investment banking, corporate finance, mergers and acquisitions and
restructuring; merchant banking; fixed income and equity sales, trading and research; and derivatives, foreign exchange and futures. In the ordinary course of these activities, we and our affiliates and related entities may (i) provide such financial
services to NGM, TCG, Parent, other participants in the Transaction and their respective affiliates, investment funds and portfolio companies for which services we and our affiliates and related entities may have received, and may in the future
receive, compensation and (ii) directly and indirectly hold long and short positions, trade and otherwise conduct such activities in or with respect to loans, debt and equity securities and derivative products of or relating to NGM, TCG, Parent,
other participants in the Transaction and their respective affiliates, investment funds and portfolio companies. Furthermore, we and our affiliates and related entities and our or their respective directors, officers, employees, consultants and
agents may have investments in NGM, TCG, Parent, other participants in the Transaction and their respective affiliates, investment funds and portfolio companies.
Consistent with applicable legal and regulatory guidelines, we have
adopted certain policies and procedures to establish and maintain the independence of our research departments and personnel. As a result, our research analysts may hold views, make statements or investment recommendations and publish research
reports with respect to NGM, TCG, Parent, other participants in the Transaction and their respective affiliates, investment funds and portfolio companies and the Transaction that differ from the views of our investment banking personnel.
Our opinion has been provided to the Special Committee (in its capacity
as such) for its information and assistance in connection with its evaluation of the Offer Price and the Merger Consideration. Our opinion may not be disclosed publicly, made available to third parties or reproduced, disseminated, quoted from or
referred to at any time, in whole or in part, without our prior written consent; provided, however, that this letter may be included in its entirety in any Solicitation/Recommendation Statement on Schedule 14D-9 to be distributed to
the holders of Shares in connection with the Transaction.
The Special Committee of the Board of Directors
NGM Biopharmaceuticals, Inc.
February 25, 2024
Page 5
Our opinion and any materials provided in connection therewith do not
constitute a recommendation to either the Special Committee or the Board of Directors of NGM (the “Board of Directors”) with respect to the Transaction, nor does our opinion or any summary of our underlying analyses constitute advice or a
recommendation to any holder of Shares as to whether to tender any such shares pursuant to the Offer or how to act in connection with the Transaction or otherwise. Our opinion does not address the Special Committee’s or the Board of Directors’
underlying business or financial decision to pursue or effect the Transaction, the relative merits of the Transaction as compared to any alternative business or financial strategies that might exist for NGM, the financing or funding of the
Transaction by Parent or the effects of any other transaction in which NGM might engage. Our opinion addresses only the fairness, from a financial point of view and as of the date hereof, of the Offer Price and the Merger Consideration to be received
by the holders of Shares (other than (i) Shares owned by NGM immediately prior to the effective time of the Merger, (ii) Shares owned by Parent, Merger Sub or any other subsidiary of Parent at the commencement of the Offer which are owned by Parent,
Merger Sub or any other subsidiary of Parent immediately prior to the effective time of the Merger, (iii) Appraisal Shares (as defined in the Agreement) and (iv) Rollover Shares) pursuant to the Agreement to the extent expressly specified herein. We
do not express any view or opinion as to (i) any other term, aspect or implication of (a) the Transaction (including, without limitation, the form or structure of the Transaction) or the Agreement, (b) the agreements with the Rollover Stockholders
relating to the Rollover Shares or (c) any other agreement, transaction document or instrument contemplated by the Agreement or to be entered into or amended in connection with the Transaction or (ii) the fairness, financial or otherwise, of the
Transaction to, or of any consideration to be paid to or received by, the holders of any class of securities (other than as expressly specified herein), creditors or other constituencies of NGM. Furthermore, we do not express any view or opinion as
to the fairness, financial or otherwise, of the amount or nature of any compensation payable to or to be received by any NGM’s directors, officers or employees, or any class of such persons, in connection with the Transaction relative to the Offer
Price and the Merger Consideration or otherwise.
Our opinion has been authorized for issuance by our Fairness Opinion and
Valuation Committee. Our opinion is subject to the assumptions, limitations, qualifications and other conditions contained herein and is necessarily based on economic, business, capital markets and other conditions, and the information made available
to us, as of the date hereof. We assume no responsibility for updating or revising our opinion based on facts, circumstances or events occurring after the date hereof.
Based on and subject to the foregoing, it is our opinion that, as of the
date hereof, the Offer Price and the Merger Consideration to be received by the holders of Shares (other than (i) Shares owned by NGM immediately prior to the effective time of the Merger, (ii) Shares owned by Parent, Merger Sub or any other
subsidiary of Parent at the commencement of the Offer which are owned by Parent, Merger Sub or any other subsidiary of Parent immediately prior to the effective time of the Merger, (iii) Appraisal Shares (as defined in the Agreement) and (iv)
Rollover Shares) are fair, from a financial point of view, to such holders.
Very truly yours,
/s/ Guggenheim Securities, LLC
GUGGENHEIM SECURITIES, LLC
Exhibit (d)(5)
JOINDER AGREEMENT
Dated: March 6, 2024
This Joinder Agreement (“Joinder Agreement”) is executed by the
undersigned (“Additional Holders”), pursuant to the terms of the Rollover Agreement, dated as of February 25, 2024, a copy of which is attached hereto and is incorporated herein by reference (the “Rollover Agreement”). By the execution
of this Joinder Agreement, each Additional Holder agrees as follows:
Each Additional Holder hereby joins in, and agrees to be bound by, the
Rollover Agreement with the same force and effect as if Additional Holder were originally a party thereto and an “Additional Holder” as defined thereunder.
[Signature Page Follows]
Executed and delivered as of _2/29/24.
ADDITIONAL HOLDER:
By: Rohana Samtani Mrs.
Name:
Title:
Address: [***]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☒
Holder through a broker: Broker name: [***]
ROLLOVER SHARES: 177
[Signature Page to Joinder Agreement]
Executed and delivered as of 1 March, 2024
ADDITIONAL HOLDER:
Vintos Inc.
For and on behalf of Vintos Inc
Name: Kek Yen Leng
Title: Authorized Signatories
Name: Shahfiq Said
Title: Authorized Signatories
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☒
Holder through a broker: Broker name:
ROLLOVER SHARES: 2,333
Executed and delivered as of Feb. 29, 2024
ADDITIONAL HOLDER:
Wenyan Shen and Fei Xiong
Name: Wenyan Shen
Title: CEO, Proteologix, Inc.
Name: Fei Xiong
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☐
Holder through a broker: Broker name: [***]
ROLLOVER SHARES: 31,296
Executed and delivered as of Feb. 29, 2024
ADDITIONAL HOLDER:
Wenyan Shen
Name: Wenyan Shen
Title: CEO, Proteologix, Inc.
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☐
Holder through a broker: Broker name: [***]
ROLLOVER SHARES: 57,895
Executed and delivered as of 5 March, 2024
ADDITIONAL HOLDER:
Corvina Holdings Limited
Name: Kerry Graziola
Title: Alternate Director
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☒
Holder through a broker: ☐ Broker name:
ROLLOVER SHARES: 280,000
Executed and delivered as of 5 March, 2024
ADDITIONAL HOLDER:
| By: |
/s/ George Harvey Bathurst |
|
Name:
Title:
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☒
Holder through a broker: ☒ Broker name: [***]
ROLLOVER SHARES: 14,000
Executed and delivered as of Feb. 5, 2024
ADDITIONAL HOLDER:
| By: |
/s/ Ann-Therese Steen Hyman |
|
Name:
Title:
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☐
Holder through a broker: ☒ Broker name: [***]
ROLLOVER SHARES: 4,209
Executed and delivered as of Feb. 5, 2024
ADDITIONAL HOLDER:
Name:
Title:
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☐
Holder through a broker: ☒ Broker name: [***]
ROLLOVER SHARES: 29,378
Executed and delivered as of March 6th, 2024
ADDITIONAL HOLDER:
Woodhouse Family Trust
| By: |
/s/ David J. Woodhouse |
|
Name: David J. Woodhouse
Title: Trustee, Woodhouse Family Trust
Address: [**]
Email: [***]
Ownership of the Rollover Shares:
Holder of record: ☐
Holder through a broker: ☒ Broker name: [***]
ROLLOVER SHARES: 97,654
Accredited Investor Certificate
The Purchaser represents and warrants that the Purchaser is an “accredited investor” (an “Accredited Investor”)
as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all boxes that apply):
For Natural Persons
The Purchaser is a natural person and (please check all boxes that apply):
|
☐ |
has an individual net worth or a joint net worth with the Purchaser’s Spousal Equivalent1 in excess of $1,000,000 (determined by subtracting total liabilities from total assets)2; |
|
☐ |
had an individual income in excess of $200,000 (or a joint income together with the Purchaser’s spouse or Spousal
Equivalent in excess of $300,000) in each of the two most recently completed calendar years, and reasonably expects to have an individual income in excess of $200,000 (or a joint income together with the Purchaser’s spouse or Spousal Equivalent
in excess of $300,000) in the current calendar year; |
|
☐ |
holds in good standing one or more of the following professional certifications: General Securities Representative
license (Series 7), Private Securities Offerings Representative license (Series 82), or Investment Adviser Representative license (Series 65); and/or |
|
☐ |
is a “family client,” as defined in Rule 202(a)(11)(G)-1 under the U.S. Investment Advisers Act of 1940, as amended (the
“Advisers Act”), whose prospective investment in the Partnership is directed by that person’s Qualified Family Office (as defined below). |
|
1 |
“Spousal Equivalent” means the Purchaser’s spouse or a cohabitant occupying a relationship generally equivalent to
that of a spouse. |
|
2 |
For purposes of calculating the Purchaser’s net worth or joint net worth with the Purchaser’s Spousal Equivalent, the
calculation should exclude the Purchaser’s primary residence and indebtedness thereon up to the gross value of such residence; provided, that if the amount of such indebtedness outstanding at the time of Purchaser’s admission to the
Partnership would exceed the amount of such indebtedness outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability in the determination
of Purchaser’s net worth. Further, for purposes of calculating the joint net worth of the Purchaser and the Purchaser’s Spousal Equivalent, the assets of the Purchaser and Spousal Equivalent need not be held jointly. |
For Entities
The Purchaser is an entity and (please check all boxes that apply):
|
☐ |
is a corporation, partnership, limited liability company, Massachusetts or similar business trust or organization
described in Section 501(c)(3) of the U.S. Internal Revenue Code of 1986, as amended, not formed for the specific purpose of acquiring interests in the Partnership that has total assets in excess of $5,000,000; |
|
☐ |
is a bank as defined in Section 3(a)(2) of the Securities Act, a savings and loan association, or other institution
defined in Section 3(a)(5)(A) of the Securities Act acting in either its individual or fiduciary capacity (this includes a trust for which a bank acts as trustee and exercises investment discretion with respect to the trust’s decision to invest
in the Partnership); |
|
☐ |
is a broker dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”); |
|
☐ |
is an investment adviser registered pursuant to Section 203 of the Advisers Act, or registered pursuant to the laws of a
U.S. state; |
|
☐ |
is an investment adviser relying on the exemption from registering with the U.S. Securities and Exchange Commission under
Section 203(l) or (m) of the Advisers Act; |
|
☐ |
is an insurance company as defined in Section 2(a)(13) of the Securities Act; |
|
☐ |
is an investment company registered under the U.S. Investment Company Act of 1940, as amended (the “Investment Company
Act”), or a business development company as defined in Section 2(a)(48) of the Investment Company Act; |
|
☐ |
is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of
the U.S. Small Business Investment Act of 1958, as amended; |
|
☐ |
is a Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act of
1972, as amended; |
|
☐ |
is a plan established and maintained by a state, its political subdivisions, or an agency or instrumentality of a state
or its political subdivisions, for the benefit of employees, having total assets in excess of $5,000,000; |
|
☐ |
is an employee benefit plan within the meaning of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
(a) for which the investment decision to acquire an interest in the Partnership is being made by a plan fiduciary, as defined in Section 3(21) of ERISA, that is either a bank, savings and loan association, insurance company, or registered
investment adviser, (b) which has total assets in excess of $5,000,000, or (c) which is self-directed, with the investment decisions made solely by persons who are Accredited Investors; |
|
☐ |
is a private business development company as defined in Section 202(a)(22) of the Advisers Act; |
|
☐ |
is a trust not formed for the specific purpose of acquiring interests in the Partnership with total assets in excess of
$5,000,000 and directed by a person who has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of investing in the Partnership; |
|
☐ |
is a revocable trust (including a revocable trust formed for the specific purpose of acquiring an interest in the
Partnership) and the grantor or settlor of such trust is an Accredited Investor; |
|
☐ |
is a “family office” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act, (a) with assets under management in
excess of $5,000,000, (b) that was not formed for the specific purpose of acquiring interests in the Partnership, and (c) whose prospective investment in the Partnership is directed by a person who has such knowledge and experience in financial
and business matters that such family office is capable of evaluating the merits and risks of an investment in the Partnership (such a family office, a “Qualified Family Office”); |
|
☐ |
is a “family client,” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act, whose prospective investment in the
Partnership is directed by its Qualified Family Office; |
|
☐ |
is an entity of a type not listed above that (i) was not formed for the specific purpose of acquiring interests in the
Partnership and (ii) that owns “investments” (as defined in Rule 2a51-1(b) under the Investment Company Act) in excess of $5,000,000; and/or |
|
☐ |
is an entity in which each equity owner is an Accredited Investor.3 |
[Signature Pages Follow]
|
3 |
For purposes of selecting this response, it is permissible to look through various forms of equity ownership to natural
persons. Those natural persons and all other equity owners of the entity seeking Accredited Investor status must be Accredited Investors. |
IN WITNESS WHEREOF, the undersigned has executed this certification as of the date first
written above.
EXECUTIVE VERSION
ROLLOVER AGREEMENT
This ROLLOVER AGREEMENT (this “Agreement”) is dated as of February
25, 2024, by and among (i) Atlas Neon Parent, Inc., a Delaware corporation (“Parent”), (ii) Atlas Neon Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), (iii) the Persons listed on the
signature pages hereto under the heading “Sponsors” (“Sponsors”) and (iv) the Persons listed on the signature pages hereto under the heading “Additional Rollover Holders” (“Additional Holders”, and “Holders”). Capitalized
terms used but not defined herein shall have the meanings given to them in the Merger Agreement (as defined below).
BACKGROUND
Parent and Merger Sub are parties to the Agreement and Plan of Merger
dated as of the date hereof (as amended, supplemented or modified from time to time in accordance with the terms thereof and in compliance with this Agreement, the “Merger Agreement”), with NGM Biopharmaceuticals, Inc., a Delaware corporation
(the “Company”), pursuant to which, upon the terms and subject to the conditions set forth therein, Parent has agreed to cause Merger Sub to commence a cash tender offer (as it may be amended from time to time in accordance with the terms of
the Merger Agreement, the “Offer”) to purchase all the outstanding shares of common stock, par value $0.001 per share (the “Company Common Stock”), of the Company for a price per share of $1.55, subject to applicable tax withholding and
without interest (the “Offer Price”). On the terms and subject to the conditions set forth in the Merger Agreement, following the closing of the Offer, Parent will cause Merger Sub to merge with and into the Company (“Merger”), with the
Company surviving as a subsidiary of Parent.
Sponsors are party to the Rollover Agreement with Parent and Merger Sub,
dated as of the date hereof (the “Sponsor Rollover Agreement”), pursuant to which Sponsors desire, in lieu of receiving the Offer Price and subject to the terms and conditions set forth therein, immediately prior to the Merger Closing, to
contribute that number of Company Common Stock held by it that is set forth on the signature pages thereto (the “Sponsor Rollover Shares”) and in exchange for each such Sponsor Rollover Share to receive 100 newly issued common shares of
Parent, par value US$0.001 (“Parent Shares”)
Each Holder desires, in lieu of receiving the Offer Price and subject to
the terms and conditions set forth herein, immediately prior to the Merger Closing, to contribute that number of Company Common Stock held by it that is set forth on such Holder’s signature page hereto (such Holder’s “Rollover Shares”) and in
exchange for each such Rollover Share to receive 100 newly issued Parent Shares.
This Agreement governs the relationship of the parties hereto pending the
Merger Closing (including in respect of the Merger Agreement, the Merger and the other Transactions) and with respect to Parent and the Parent Shares following the Merger Closing.
ROLLOVER
Contribution and Subscription. Effective immediately prior
to the Merger Closing and subject to and conditioned upon the satisfaction of the conditions set forth in Section 1.3, (x) each Holder agrees to and hereby does contribute, assign, transfer and deliver to Parent, and Parent agrees to and
hereby does acquire, assume and accept from each Holder, all of such Holder’s right, title and interest in, to and under the number of Rollover Shares as set forth on such Holder’s signature page hereto and (y) in consideration for such contribution
and concurrently therewith, Parent shall and does issue to such Holder (or, if agreed in writing by such Holder and Parent, an Affiliate of such Holder), and such Holder shall, automatically and with no further action thereby, subscribe for, acquire
and accept, that number of Parent Shares equal to 100 times the number of Holder’s Rollover Shares so contributed hereunder (such contribution and subscription, the “Rollover Closing”). Each Holder hereby acknowledges and agrees that (i)
delivery of the Parent Shares pursuant to and in accordance with the foregoing sentence shall constitute complete satisfaction of all obligations towards or sums due to such Holder by Parent and Merger Sub in respect of the Rollover Shares held by
such Holder and cancelled at the Merger Closing as contemplated by the Merger Agreement, and (ii) such Holder shall have no right to the Offer Price pursuant to the Offer, the Merger or otherwise in respect of the Rollover Shares of such Holder.
Adjustments. Parent may determine in its sole discretion to
reduce, in whole or in part, the amount of Rollover Shares of any Holder upon written notice given to such Holder at least three (3) Business Days prior to the Rollover Closing. Upon delivery of such notice, the number of Rollover Shares opposite
such Holder’s name shall be reduced as provided in such notice (and for the avoidance of doubt the Company Common Stock so reduced shall thereupon cease to be Rollover Shares hereunder and shall instead have the right to the Offer Price in connection
with the Offer and Merger).
Conditions.
Conditions to the Obligation of each Holder. The obligation of
each Holder under this Agreement to consummate the transactions of such Holder contemplated hereby is subject to the satisfaction of the following conditions prior to or concurrently with the Rollover Closing: (i) the representations and warranties
made in this Agreement by Parent shall be true and correct in all material respects as of the Rollover Closing; (ii) each of the covenants and obligations that Parent is required to comply with or to perform pursuant to this Agreement shall have been
complied with and performed in all material respects; (iii) the execution and delivery of this Agreement by Parent, Merger Sub and the Sponsors; (iv) the contribution of the Sponsor Rollover Shares to Parent pursuant to the Sponsor Rollover
Agreement; and (v) effective immediately following the Rollover Closing, the Merger Closing shall occur pursuant to and in accordance with the Merger Agreement as in effect on the date hereof.
Conditions to the Obligation of Parent and Merger Sub. The
obligations of Parent and Merger Sub to consummate the transactions of Parent and Merger Sub contemplated hereby is subject to, in each case with respect to the applicable Holder, the satisfaction of the following conditions prior to or concurrently
with the Rollover Closing: (i) the representations and warranties made in this Agreement by the applicable Holder shall be true and correct in all material respects as of the Rollover Closing; (ii) each of the covenants and obligations that the
applicable Holder is required to comply with or to perform pursuant to this Agreement shall have been complied with and performed in all material respects; (iii) the execution and delivery of this Agreement and the accredited investor certificate in
the form attached as Exhibit B in each case by the applicable Holder; and (iv) effective immediately following the Rollover Closing, the Merger Closing shall occur pursuant to and in accordance with the Merger Agreement.
RESTRICTIONS ON TRANSFER
Agreement Not to Transfer.
Except for the contribution to Parent of Rollover Shares pursuant to
this Agreement or with the prior written consent of Parent, Holder hereby agrees, from the date hereof until the termination of this Agreement in accordance with its terms, such Holder shall not, and shall cause its Affiliates not to, directly or
indirectly:
offer for sale, sell (constructively or otherwise), transfer, assign,
tender in any tender or exchange offer (including the Offer), gift, hedge, pledge, charge, mortgage, grant, encumber, hypothecate or otherwise assign or dispose of (by merger, testamentary disposition, operation of Law or otherwise) (collectively, “Transfer”),
or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of its Rollover Shares or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or
sale transaction, futures, derivative or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of its Rollover Shares which (x) has, or could
reasonably be expected to have, the effect of reducing or limiting such person’s economic interest in such Rollover Shares and/or (y) with respect to its Rollover Shares, grants a third party the right to vote or direct the voting, tender, sale or
Transfer of such Rollover Shares;
deposit any of its Rollover Shares into a voting trust or enter into a
voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement;
convert or exchange, or take any action which would result in the
conversion or exchange of, any of its Rollover Shares; provided, that the foregoing shall not apply to the conversion, exercise or settlement of any incentive units of the Company in accordance with the terms and conditions thereof; or
agree to take any of the actions referred to in this Section 2.1.
If any involuntary Transfer of any Holder’s Rollover Shares shall occur,
the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Rollover Shares subject to all of the restrictions, obligations, liabilities and rights
under this Agreement, which shall continue until this Agreement is terminated in accordance with its terms.
Any action taken in violation of this Section 2.1 shall, to the fullest
extent permitted by law, be null and void ab initio.
Each Holder hereby authorizes and instructs the Company to cause the
Company’s transfer agent or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect to all of the Rollover Shares or other capital stock or any securities convertible into or exercisable or exchangeable
for Rollover Shares or other capital stock of the Company owned or held (of record or beneficially) by such Stockholder during the term of this Agreement.
Agreement Not to Tender. Holder hereby agrees that, from the date
hereof until the termination of this Agreement in accordance with its terms, such Holder shall not, and shall cause its Affiliates not to, directly or indirectly, tender or agree or commit to tender any of its Rollover Shares pursuant to the Offer,
including in any “subsequent offering period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). To the extent any Holder directly or indirectly tenders or purports to tender any of its
Rollover Shares in the Offer in violation or contravention of this Agreement, such Holder acknowledges and agrees that, to the maximum extent permitted by applicable Law, such tender and any right to receive the Offer Price thereunder shall in each
case be null and void in all respects and such Rollover Shares shall remain subject to the terms of this Agreement; provided, if at any time the Rollover Shares are required under applicable Law to be treated pursuant to and in accordance with the
Offer and the Merger Agreement and/or to receive the Offer Price, then the contribution of such Rollover Shares to Parent and the issuance of Parent Shares to such Holder in consideration therefor in each case as contemplated by this Agreement shall
be null and void in all respects and such Holder shall have no claim or right to any Parent Shares pursuant to this Agreement or otherwise in respect of any such Rollover Shares. For the avoidance of doubt, each Holder acknowledges and agrees that,
with respect to any share of Company Common Stock, in no circumstances shall such Holder have the right to receive both the Offer Price and any Parent Shares. This Article II shall terminate in the event that the offered price in the Offer exceeds
the Offer Price.
COVENANTS
Covenants. From the date hereof until this Agreement is terminated
in accordance with its terms, each Additional Holder, severally and not jointly:
agrees to not, and to cause its Affiliates and Representatives (in their
respective capacities as such) to not, without the prior written consent of Parent, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion offer or request that constitutes, or would reasonably be expected to lead
to, any Company Takeover Proposal, (ii) enter into, continue or maintain discussions or negotiations with, or provide any non-public information relating to the Company or any of its subsidiaries to, any Person in connection with any Company Takeover
Proposal, (iii) approve, agree to, accept, endorse, vote its Rollover Shares against and to recommend rejecting any Company Takeover Proposal or (iv) enter into any agreement, arrangement or understanding or have discussions with any other potential
Holder or acquirer, group of Holders or acquirors, or the Company or any of its representatives with respect to the subject matter of this Agreement and the Merger Agreement or any other similar transaction involving the Company including any Company
Takeover Proposal; provided, the foregoing shall not limit or restrict any Holders or any representatives thereof in their capacity as a director or officer of the Company (and not in its capacity as a representative of a shareholder or its
Affiliate) from exercising any fiduciary duties and responsibilities solely in such capacity in accordance with the Merger Agreement and applicable Law;
agrees, prior to the termination of this Agreement in accordance with
its terms, not to knowingly take any action that would make any representation or warranty of such Person contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the
performance by such Person of its obligations under this Agreement;
irrevocably waives, and agrees not to exercise, any rights of appraisal
or rights of dissent from the Merger that such Person may have with respect to such Person’s shares of Company Common Stock (including, without limitation, any rights under Section 262 of the DGCL);
agrees not to initiate any action seeking to enjoin, prevent or delay
the Merger or any of the transactions contemplated thereby or claiming that the Offer Price or issuance of Parent Shares, as applicable, are not fair to the Company or any of its shareholders or that is intended, or would reasonably be expected, to
impede, frustrate, interfere with, delay, postpone, adversely affect or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or the performance by the Company of its obligations under
the Merger Agreement or by such Rollover Shareholder of its or his obligations under this Agreement;
agrees to permit the Company to publish and disclose in a Rule 13e-3
Transaction Statement on Schedule 13E-3, Schedule 14D-9 or any other publicly filed document related to the Transactions, such Person’s identity and beneficial ownership of Shares or other equity securities of the Company and the nature of such
Person’s commitments, arrangements and understandings under this Agreement;
agrees that such Person shall not, without the prior written consent of
Parent, acquire any new shares of Company Common Stock or any other securities of the Company, including, without limitation, by purchase, exchange or change of such shares, combination, reclassification or upon exercise or conversion of any
securities of the Company after the date hereof, but excluding any such shares issued as a result of a share dividend, share split or recapitalization; provided, that the foregoing shall not apply to the issuance of such shares upon
conversion, exercise or settlement of any incentive units of the Company in accordance with the terms and conditions thereof or any issuance of new shares by the Company;
agrees that such Holder or any of its respective Affiliates has not and
shall not enter into any material agreement, arrangement or transaction with any Holder relating to the Transactions without the prior written consent of Parent, except for non-reliance letters, access letters and other agreements related to
diligence reports and agreements of similar nature;
agrees, subject to the limitations in the Merger Agreement, to use
reasonable best efforts and provide all cooperation as may be reasonably requested by Parent to obtain all applicable governmental, statutory, regulatory or other approvals, licenses, waivers or exemptions required or, in the reasonable opinion of
the Sponsors, desirable for the consummation of the Transactions;
agrees, following the date hereof any in any event at least ten (10)
Business Days prior to the Rollover Closing, with respect to any Rollover Shares of which such Holder is not the holder of record, to transfer or cause to be transferred such Rollover Shares to (at Holder’s election) (x) such Holder as the holder of
record thereof or (y) to such broker or exchange agent as Parent may designate to such Holder in writing; and
agrees that, upon request of Parent, such Person shall execute and
deliver any additional documents, consents or instruments and take such further actions as may reasonably be necessary to carry out the provisions of this Agreement.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of each Holder. Each Holder,
severally and not jointly, represents and warrants to Parent that, as of the date hereof and as of the Rollover Closing:
such Holder is the legal owner of the Rollover Shares set forth on its
signature page hereto and has good and valid title to such Rollover Shares, free and clear of all Liens except as may be imposed by applicable securities Law;
such Holder has the requisite power and authority to execute and deliver
this Agreement, to perform such Person’s obligations hereunder and to consummate the transactions contemplated hereby;
if such Holder is not a natural person, such Holder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its formation;
this Agreement has been duly executed and delivered by such Holder and,
if such Holder is not a natural person, the execution, delivery and performance of this Agreement by such Holder, and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or similar action on
the part of such Person and no other corporate or similar actions or proceedings on the part of such Person are necessary to authorize this Agreement or to consummate the transactions contemplated hereby;
assuming due authorization, execution and delivery by Parent, this
Agreement constitutes a legal, valid and binding agreement of such Holder, enforceable against such Holder in accordance with its terms;
except as contemplated hereby or disclosed in a Schedule 13D filed with
the SEC by a Holder, as amended as of the date hereof, there are no options, warrants or other rights or Contracts to which it is a party relating to the pledge, disposition or voting of any of such Holder’s Rollover Shares, and such Rollover Shares
are not subject to any voting trust agreement or other Contract to which Holder or any of its Affiliates is a party restricting or otherwise relating to the voting or Transfer of such Rollover Shares (other than the express terms of this Agreement);
except for the applicable requirements of the Exchange Act and Laws of
the State of Delaware, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of such Holder for the execution, delivery and performance of this Agreement by such Holder or the
consummation by such Holder of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by such Holder, nor the consummation by such Holder of the transactions contemplated hereby, nor compliance
by such Person with any of the provisions hereof shall violate any Contract to which such Holder is a party or by which such Holder or any property or asset of such Holder is bound or affected, in each case which have, or could have, the effect of
preventing, impeding or interfering with or adversely affecting the performance by such Holder of its obligations under this Agreement or violate any applicable Law;
as of the date hereof, there is no Proceeding pending or, to the
knowledge of such Holder, threatened against such Holder or any of Affiliates that restrict, prohibit, or delay (or, if successful, would restrict or prohibit, restrict or delay) the performance by such Holder of its obligations under this Agreement;
such Holder (i) has been afforded the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms and conditions of the transactions contemplated hereby and the merits and risks of owning Parent Shares, (ii) is a sophisticated investor
familiar with the risk and nature of transactions of the type contemplated by this Agreement and the Merger Agreement, (iii) acknowledges that it has been advised to discuss with its own legal, tax and financial advisors the meaning and legal, tax
and financial consequences of this Agreement and the transactions contemplated hereby, (iv) acknowledges that the value of the Parent Shares is uncertain and subject to considerable risk and may be less than the Offer Price and that none of Parent,
Merger Sub, the Sponsors, the other Holders, or any of their respective Affiliates or Representatives makes any representations or warranties as to the value or performance of the Parent Shares, and (v) acknowledges it must bear and is capable of
bearing the economic risk of the Parent Shares for an indefinite period of time as such Parent Shares have not been registered for sale or Transfer under the Securities Act or otherwise and therefore cannot be sold or otherwise Transferred unless
either the Parent Shares are subsequently registered thereunder or an exemption from such registration is available;
such Holder is (i) acquiring the Parent Shares for such Holder’s own
account, for investment only, and not with a view to any resale or public distribution thereof and (ii) is an “accredited investor” within the meaning of Rule 501 promulgated under the Securities Act (and, at the date hereof, such Holder has
delivered to Parent an executed accredited investor certificate in the form attached as Exhibit B to this Agreement);
if such Holder is a married individual and such Holder’s Rollover Shares
constitute community property or otherwise require spousal approval in order for this Agreement to be a legally valid and binding obligation of such Holder, this Agreement has been duly executed and delivered by such Holder’s spouse and constitutes a
legally valid and binding obligation of such Holder’s spouse, enforceable against such Holder’s spouse in accordance with its terms;
such Holder understands and acknowledges that Parent and Merger Sub are
entering into this Agreement and the Merger Agreement in reliance upon such Holder’s execution, delivery and performance of this Agreement and the accuracy of the representations and warranties of such Holder hereunder.
Representations and Warranties of Parent. Parent represents and
warrants to each Holder that as of the date hereof and as of immediately prior to the Rollover Closing:
Parent is a Delaware corporation, duly incorporated, validly existing
and in good standing under the Laws of the State of Delaware and has all requisite corporate or similar power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by Parent and the execution, delivery and performance of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and no other corporate actions or proceedings on the part of Parent are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Assuming due authorization,
execution and delivery by the other parties, this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms;
except for the applicable requirements of the Exchange Act and Laws of
the State of Delaware and as set forth in the Merger Agreement, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of Parent for the execution, delivery and performance of this
Agreement by Parent or the consummation by Parent of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by Parent, nor the consummation by Parent of the transactions contemplated hereby,
nor compliance by Parent with any of the provisions hereof shall violate any material Contract to which Parent is a party or by which Parent or any of its property or asset is bound or affected, or violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Parent or any of its properties or assets;
at the Rollover Closing, the Parent Shares to be issued under this
Agreement shall have been duly and validly authorized and when issued and delivered in accordance with the terms hereof, will be validly issued, fully paid and nonassessable, free and clear of all Liens, other than restrictions arising under
applicable securities Laws, the organizational documents of Parent or the Shareholder Agreement;
immediately after the Rollover Closing, the Parent Shares issued
pursuant to this Agreement shall be all of the Parent Shares outstanding (other than any shares which may have been issued by Parent in connection with the formation thereof, which in any event shall be forfeited or cancelled promptly following the
Rollover Closing for no consideration);
Parent and Merger Sub have no, and immediately
prior to the Rollover Closing, will have no, assets (other than Parent’s equity interests in Merger Sub), liabilities or
obligations of any nature other than those incident to its formation and capitalization pursuant to this Agreement, the Merger Agreement and the Transactions; and
Merger Sub is wholly-owned by Parent.
GOVERNANCE
Interim Governance. The Sponsors shall have the sole right to (and
the Additional Holders shall not have any right or ability to) cause Parent or Merger Sub to take any action or refrain from taking any action (i) that is not in contravention of this Agreement or the Merger Agreement or (ii) in order for Parent or
Merger Sub to comply with their respective obligations, satisfy their respective closing conditions or exercise their respective rights under the Merger Agreement, including (a) determining that any of the Offer Conditions or conditions to the
closing of the Merger have been satisfied and, assuming such satisfaction, determining to close the Offer and/or the Merger, (b) waiving compliance with any covenants, agreements or the conditions contained in the Offer Documents and/or Merger
Agreement or amending, supplementing or modifying any such agreement, (c) terminating the Offer or the Merger Agreement in accordance with its respective terms, (d) extending the expiration of the Offer and/or increasing the offer price in the Offer,
(e) controlling, directing and settling any shareholder-related suit, claim or proceeding arising in connection with the transactions contemplated by the Merger Agreement or the Offer, (f) determining not to consummate the contribution and
subscription contemplated by this Agreement, and/or (g) causing Parent and Merger Sub to initiate litigation or other legal action against the Company in connection with a breach or alleged breach of the Merger Agreement and to take any other
necessary actions in connection thereto.
Post-Closing Governance. Each Additional Holder acknowledges and
agrees that it is obligated to execute and deliver, prior to the consummation of the Merger, (i) one or more definitive agreements with respect to the matters set forth on Exhibit A hereto (the “Shareholder Agreement”) and (ii) amend
the organizational and other relevant corporate documents of Parent or its applicable Affiliate as the Sponsors may determine is required to give effect to Exhibit A. The Shareholder Agreement and such organizational and other relevant
corporate documents shall be consistent with the terms and conditions set forth on Exhibit A, and in any event no less favorable to each Additional Holder as set forth therein. Each Additional Holder agrees to promptly execute the Shareholder
Agreement and such organizational and other relevant corporate documents promptly following a request by Parent for execution prior to the Rollover Closing, which request will include the execution version of the Shareholder Agreement. In the event
that the Holders are unable to agree on the terms of the Shareholder Agreement prior to the Merger Closing, the Merger shall not be delayed and the terms set forth on Exhibit A hereto (along with such additional terms as shall have been
agreed to among the parties) shall govern with respect to the matters set forth therein following the Merger until such time as the Holders enter into a Shareholder Agreement.
MISCELLANEOUS
Expenses.
Transaction Expenses. The parties hereto expressly authorize
Parent to incur, and hereby ratify any prior incurrence by Parent of, fees, costs and expenses of counsel, accountants, consultants and other advisors with respect to and that are customary for the transactions contemplated by this Agreement or the
Merger Agreement (“Parent Transaction Expenses”). The parties hereto acknowledge that the Sponsors may have incurred Parent Transactions Expenses on behalf of Parent (whether at, prior to or after its formation), that such amounts shall be
treated as Parent Transaction Expenses and that Parent shall directly or indirectly reimburse the Sponsors for any such Parent Transaction Expenses. To the extent Parent, any Sponsors or any of their respective Affiliates is required to or does,
directly or indirectly, pay any Parent Transaction Expenses to any third party, each Holder shall, promptly and in any event within three (3) Business Days following written notice from Parent to the Holders and conditioned upon such payment,
transfer by wire transfer of immediately available funds to the account designated by Parent in such notice such Holder’s pro rata portion of such payment (based on relative number of Rollover Shares), which pro rata amount shall be specified in such
notice. Except as set forth in this paragraph, each party hereto shall bear its own expenses incurred in connection with this Agreement and the transactions contemplated hereby.
Company Termination Fee. In the event of a termination of the
Merger Agreement in which a Company Termination Fee or any other amount, either as an expense reimbursement, damages or otherwise, is paid to Parent or Merger Sub by the Company or its subsidiaries or Affiliates, Parent or Merger Sub, as the case may
be, shall first pay (or cause to be paid) all Parent Transaction Expense and discharge all of Parent’s and Merger Sub’s other liabilities and distribute the remainder to the Holders, pro rata based on the relative number of Rollover Shares held
thereby.
Amendment and Waiver. Any provision of this Agreement may be
amended or waived only in a writing signed (a) in the case of any amendment, by Parent and the Sponsors; provided, that any amendment that would be materially adverse and disproportionate to an Additional Holder as compared to any other Holder must
be signed by such Additional Holder, and (b) in the case of a waiver, by the party or parties waiving rights hereunder. No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision or
prior or subsequent breach or default.
Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability
shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
Remedies. The parties hereto agree that, except as provided herein,
this Agreement will be enforceable by all parties hereto by all available remedies at Law or in equity (including, without limitation, specific performance, without bond or other security being required). Upon any breach or threatened breach of this
Agreement by any party hereto, including if the Merger Agreement is breached or the Merger fails to be consummated in each case due (directly or indirectly) to any Holder’s breach of any of its obligations under this Agreement, Parent shall be
entitled to (a) specific performance of this Agreement, (b) payment or reimbursement by the breaching Holder of all out-of-pocket damages or expenses incurred by Parent, Merger Sub or the non-breaching Holders (including recovery of all termination
fee, expense reimbursement obligations or other amounts payable by Parent or Merger Sub under the Merger Agreement) relating to, or arising from, such breach, and/or (c) reimbursement by the breaching Holder for any costs of enforcement incurred by
Parent and/or the Sponsors in seeking to enforce such remedies.
No Recourse. Notwithstanding any provision of this Agreement or
otherwise, the parties to this Agreement agree on their own behalf and on behalf of their respective Affiliates that this Agreement may only be enforced against, and any litigation for breach of this Agreement may only be made against, the parties to
this Agreement, and, with respect to each party to this Agreement, none of such party’s former, current or future equity holders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or
limited partners, attorneys or assignees (or any Person itself in any such capacity of any of the foregoing) (each, a “Non-Recourse Party”) that is not a party to this Agreement shall have any liability or obligation relating to this Agreement
or any of the transactions contemplated herein or in respect of any oral representations made or alleged to be made in connection herewith. None of the parties shall have any rights of recovery in respect hereof against any Non-Recourse Party and no
personal liability shall attach to any Non-Recourse Party through any party hereto, or otherwise, whether by or through attempted piercing of the corporate veil, by or through a litigation (whether in tort, contract or otherwise), by the enforcement
of any judgment, fine or penalty or by virtue of any Law, or otherwise. No Additional Holder may bring any Action against Parent or any Sponsor except to specifically enforce its rights that are specifically granted to such Additional Holder
hereunder.
Governing Law; Jurisdiction. This Agreement, and all claims or
causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relating to this Agreement or the negotiation, execution or performance of this Agreement shall be governed by and construed in accordance with the Laws
of the State of Delaware, without respect to its applicable principles of conflicts of laws that might require the application of the laws of another jurisdiction. Each of the Parties hereby irrevocably and unconditionally (i) submits, for itself and
its property, to the exclusive jurisdiction and venue of the state courts of the State of Delaware in any action arising out of or relating to this Agreement, including the negotiation, execution or performance of this Agreement and agrees that all
claims in respect of any such action shall be heard and determined in the Delaware Court of Chancery, and if such court does not have subject matter jurisdiction thereof, any other court of the State of Delaware or any federal court sitting in the
State of Delaware, (ii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action arising out of or relating to this Agreement or the negotiation,
execution or performance of this Agreement in any such court, including any objection based on its place of incorporation or domicile, (iii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action in any such court and (iv) agrees that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the Parties consents and
agrees that service of process, summons, notice or document for any action permitted hereunder may be delivered by registered mail or electronic mail addressed as set forth on the signature pages hereto or in any other manner permitted by applicable
Law.
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY BE BASED UPON, ARISE OUT OF OR RELATED TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY FOR ANY DISPUTE BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION OR VALIDITY THEREOF. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO OTHER PARTY NOR ITS REPRESENTATIVES, AGENTS OR ATTORNEYS HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER
VOLUNTARILY AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Exercise of Rights and Remedies. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any
such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission or waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
Other Agreements; Assignment. This Agreement, together with the
agreements referenced herein, constitute the entire agreement, and supersede all prior agreements, understandings, negotiations and statements, both written and oral, among the parties or any of their Affiliates with respect to the transactions
contemplated hereby (other than the Merger Agreement and the other agreements expressly referred to herein or therein as being entered into in connection with the Merger Agreement). This Agreement shall not be assigned by any party hereto without the
prior written consent of Parent.
Non-Circumvention. Each party hereto agrees that it shall not
indirectly accomplish that which it is not permitted to accomplish directly under this Agreement.
No Third-Party Beneficiaries. This Agreement shall be binding on
each party hereto solely for the benefit of each other party hereto and nothing set forth in this Agreement, express or implied, shall be construed to confer, directly or indirectly, upon or give to any Person other than the parties hereto any
benefits, rights or remedies under or by reason of, or any rights to enforce or cause the parties hereto to enforce, any provisions of this Agreement, except the Non-Recourse Parties shall have the right to enforce their rights pursuant to and in
accordance with Section 6.5.
Confidentiality. Except as permitted under this paragraph, each
Additional Holder (the “Recipient”) shall not, and shall direct its Affiliates and Representatives to not, disclose any Confidential Information obtained in connection with this Agreement or the transactions contemplated hereby without the
prior written consent of Parent; provided that the Recipient may disclose any Confidential Information (i) to any of its Affiliates and Representatives who need to know such Confidential Information in connection with advising such Holder
with respect to this Agreement, the Merger Agreement or the transactions contemplated hereby and, in each case, (prior to such disclosure) have agreed, or are bound by obligations at least as stringent as the obligations herein, to maintain the
confidentiality of such Confidential Information as set out herein or (ii) to the extent required by applicable Law, provided Recipient shall, to the extent permitted by applicable Law, inform Parent of such required disclosure, request confidential
treatment of any such disclosure and reasonably cooperate with Parent at Parent’s expense to minimize any such disclosure. “Confidential Information” refers to all information obtained in confidence by one Holder from any other Holder, Parent,
the Company or any of their respective Affiliates or Representatives in connection with this Agreement or the Transactions (including the identity of the Holders and the beneficial owners thereof), unless such information (a) is already or becomes
known to the receiving Holder prior to the disclosure thereof, (b) is provided to the receiving Holder by a third party which is not known by such receiving Holder to be bound by a duty of confidentiality with respect to such information, (c) is or
becomes publicly available other than through a breach of this Agreement by such receiving Holder, or (d) is developed independently by or for the receiving Holder without using any Confidential Information.
Public Disclosures. Except with the prior written consent of Parent
or solely to the extent required by applicable Law, no Additional Holder shall issue any press release or otherwise make any public statement with respect to this Agreement, the Merger Agreement or the transactions contemplated hereby and thereby
without the prior written consent of each of the other Holders. In the event that an Holder becomes obligated to issue a press release or otherwise make a public statement as described in the preceding sentence, it shall, to the extent permitted by
law, (x) notify as promptly as possible Parent and the Sponsors of the existence, terms and circumstances surrounding such obligation; (y) consult with Parent and the Sponsors on the content of such press release or other public statement; and (z)
include the name of any other Holders in such press release or other public statement only to the extent legally compelled to do so. Notwithstanding the foregoing, each Holder may make any beneficial ownership filings or other filings with the SEC,
or amendments thereto, in respect of the Company and its securities, that such Holder reasonably believes is required under applicable law without the prior written consent of Parent, provided that each such Holder shall coordinate with the other
Holders in good faith regarding the content and timing of such filings or amendments in connection with this Agreement, the Merger Agreement or the transactions contemplated hereby and thereby.
Section 1.1 Power of Attorney. Each Additional Holder, by
its execution of this Agreement, hereby irrevocably makes, constitutes and appoints Parent (and such other Persons as may from time to time be designated by Parent) with full power of substitution and
resubstitution, such Additional Holder’s true and lawful proxy, agent and attorney-in-fact, with full power and authority in such Additional Holder’s name, place and stead, to execute, swear to, acknowledge, deliver, file and record all instruments
and other documents and do such other acts which Parent reasonably deems appropriate or necessary to effect or evidence contribution and deposit of the Rollover Shares in accordance with Article I, its covenants in accordance with Article
III, and the other actions and obligations required of such Additional Holder pursuant to and in accordance with this Agreement, and such power of attorney may be exercised at any time and from time to time from the date hereof until the
termination of this Agreement pursuant to and in accordance with Section 6.17. The foregoing power of attorney is irrevocable and coupled with an interest, and shall survive such Additional Holder’s death, disability, incapacity,
dissolution, bankruptcy, insolvency or termination and the transfer of all or any portion of its Company Common Stock and shall extend to such Additional Holder’s heirs, successors, assigns and personal representatives, and any person dealing with
Parent may conclusively and absolutely rely, without inquiry, upon any act of the Parent as the act of Parent in the matters referred to in this paragraph. Other than as provided in this paragraph, each Additional Holder shall not, directly or
indirectly, grant any Person any proxy (revocable or irrevocable), power of attorney or other authorization with respect to any of its Rollover Shares. Parent may terminate this proxy with respect to any Additional Holder at any time at its sole
election by written notice provided to the Additional Holder.
Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile or electronic transmission in “portable document format”), each such counterpart when executed shall be deemed to be an original instrument, and all such counterparts shall together constitute one and the same
agreement.
Headings. The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
Termination. Except with respect to Section 4.1 (Representations
and Warranties of each Holder) and this Article VI (Miscellaneous), this Agreement will terminate upon the earlier to occur of (a) the Merger Closing, (b) the termination of the Merger Agreement in accordance with its terms, and
(c) September 30, 2024; provided, that any liability for any failure to comply with the terms of this Agreement prior to termination shall survive such termination.
No Presumption Against Drafting Party. Each of the Parties to this
Agreement acknowledges that it has been represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of
any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
No Partnership. Except as expressly contemplated herein, nothing in
this Agreement is intended to, and this Agreement shall not, create a partnership between the parties hereto. Accordingly, (i) the rights, obligations and duties of each party hereto in relation to the other parties with respect to the subject matter
of this Agreement shall be only those contractual rights, obligations and duties that are created by the express terms of this Agreement and shall not include any fiduciary or other implied rights, obligations or duties of any kind, (ii) no party
hereto shall be authorized to act on behalf of the other parties except as otherwise expressly provided by the terms of this Agreement and (iii) no party hereto shall be obligated to any third party for the obligations or liabilities of any other
party hereto.
Intended Tax Treatment. For U.S. federal, and applicable state and
local income tax purposes each of the contributions of Rollover Shares hereunder, taken collectively, shall be treated as an integrated transaction qualifying under Section 351(a) of the Internal Revenue Code of 1986, as amended.
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered in person or upon confirmation of receipt when transmitted by electronic mail or on the next Business Day if transmitted by international overnight courier,
(a) if to Parent or any Sponsor, to
c/o The Column Group
1 Letterman Drive, Building D, Suite DM-900
San Francisco, California 94129
Telephone No.: (415) 865-2050
Attention: Peter Svennilson, Dave Goeddel, James Evangelista
Email: [***]
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
535 Mission Street, 24th Floor
San Francisco, California 94105
Telephone No.: (628) 432-5100
Attention: Austin S. Pollet
Email: [***]
if to any Additional Holder, to the address set forth on its signature page hereto.
[Signature pages follow]
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement as of the date first above written.
PARENT:
ATLAS NEON PARENT, INC.
Name: Peter Svennilson
Title: President and Secretary
MERGER SUB:
ATLAS NEON MERGER SUB, INC.
Name: Peter Svennilson
Title: President and Secretary
SPONSOR:
The Column Group II, LP
By: The Column Group II GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group III, LP
By: The Column Group III GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group III, LP
By: The Column Group III GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group IIIA, LP
By: The Column Group III GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group IIIA, LP
By: The Column Group III GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group IV, LP
By: The Column Group IV GP, LP
Its: General Partner
By: The Column Group IV GP, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group IV, LP
By: The Column Group IV GP, LP
Its: General Partner
By: The Column Group IV GP, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group Management, LP
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group Opportunity III, LP
By: The Column Group Opportunity III GP, LP
Its: General Partner
By: TCG Opportunity III GP, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group Opportunity III, LP
By: The Column Group Opportunity III GP, LP
Its: General Partner
By: TCG Opportunity III GP, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
Ponoi Capital, LP
By: Ponoi Management, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
Ponoi Capital II, LP
By: Ponoi II Management, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group GP, LP
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
SPONSOR:
The Column Group, LP
By: The Column Group GP, LP
Its: General Partner
By: The Column Group, LLC
Its: General Partner
| By: |
/s/ James Evangelista |
|
Name: James Evangelista
Title: Partner & CFO
Address: [***]
Email: [***]
Exhibit A
Shareholder Agreement Term Sheet
|
Documentation: |
At closing, Parent and the Holders will enter into a Shareholder Agreement containing the terms summarized below. |
|
Security: |
The Holders will all hold equity interests (“Shares”) in Parent of the same class, type and preference, and at the
same price per Share. The parties intend for the Shares to be common stock and for Parent to be a Delaware corporation. |
|
Board: |
The board of directors of Parent (the “Board”) will be elected by Holders holding a majority of Parent’s
then-outstanding Shares. Subject to the foregoing, the parties desire for the members of the Board to be substantially similar to those in effect prior to the Transactions. |
|
Transfer: |
No Additional Holder may directly or indirectly Transfer, other than to customary affiliates, any Shares without the
prior written consent of the Board. Transfers by an Additional Holder to which the Board consents will also be subject to a right of first refusal in favor of Parent. |
|
Tag-Along: |
Each Holder will have customary tag-along rights in connection with Transfers by a Holder to non-affiliates, subject to
customary exceptions. |
|
Drag-Along: |
If the Board proposes to Transfer to a non-affiliate all or any portion of the outstanding Shares or all or substantially
all of the assets or business of Parent and its subsidiaries (in each case including in connection with an initial public offering), the Board will have the right to cause each Holder, to the extent applicable, to vote in favor of, reasonably
cooperate with, waive any appraisal rights in respect of, and not oppose such transaction, in each case subject to customary limitations for the Holders being dragged. |
|
Preemptive Rights: |
If Parent wishes to issue any equity of Parent or its subsidiaries, each Holder holding at least 1% of Parent’s then-outstanding Shares will have preemptive rights to its pro rata portion
of such Shares (or equivalents), subject to customary exceptions. |
|
Information Rights: |
Parent will provide to each Holder holding at least 5% of Parent’s then-outstanding Shares quarterly unaudited financial reports and annual audited financial reports, subject to customary
limitations. |
|
Management: |
Parent will have the right to repurchase Shares held by employees or service providers who are terminated or voluntarily
terminate employment with the Company on terms customary for transactions of this nature (including satisfaction of all or a portion of the purchase price with a subordinated note on customary terms). Additional Holders who are employees or
service providers will also agree to confidentiality, non-compete and non-solicit restrictive covenants on customary terms effective until one year following the date on which they no longer hold Shares and are no longer an employee or service
provider. |
|
Amendments: |
The Shareholder Agreement may be amended or waived by Holders holding a majority of the then-outstanding Shares,
provided, subject to customary exceptions, no amendment or waiver will apply to any Holders disproportionately adversely effected thereby, relative to the Holders approving such amendment or waiver, without the prior written consent of the
Holders holdings of a majority of the Shares held by such disproportionately adversely effected Holders. |
|
Expenses: |
Parent will be responsible for the payment or reimbursement of fees, costs and expenses incurred by the Sponsors in
connection with the Transactions. |
