Common use of Tender and Support Agreements Clause in Contracts

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms of Tender and Support Agreements, copies of which are filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms of Tender and Support Agreements. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July 28, 2016 (the “Tender and Support Agreements”) with Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx and NetSuite Restricted Holdings LLC, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 Shares (or approximately 43.2% of all Shares outstanding as of July 28, 2016). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 Shares as of July 28, 2016 (or approximately 43.4% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28, 2016). The Tender and Support Agreements provide that, no later than three Business Days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer, and not withdraw, all outstanding Shares such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”).

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms form of Tender and Support AgreementsAgreement, copies a copy of which are is filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms form of Tender and Support AgreementsAgreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July April 28, 2016 (the “Tender and Support Agreements”) with Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxx Xxxxxxxx, X. Xxxxxxx Xxxxxx, Jr., General Xxxxx XxXxxxxxXxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxx X. Xxxxxx, Northwater Capital Inc., Northwater Intellectual Property Fund L.P. 1, Northwater Intellectual Property Fund L.P. 2 and NetSuite Restricted Holdings LLC, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) Northwater Intellectual Property Fund L.P. 3A (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Company Compensatory Awards (other than shares of restricted stock and performance shares)Awards, as of July April 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 5,750,690 Shares (or approximately 43.221.4% of all Shares outstanding as of July April 28, 2016). Including Shares which may be issued under NetSuite Company Compensatory Awards and warrants to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July April 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 6,631,850 Shares as of July April 28, 2016 (or approximately 43.423.9% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28April 26, 2016). The Tender and Support Agreements provide that, no later than three Business Days five (5) business days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer, and not withdraw, all outstanding Shares such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). The Tender and Support Agreements also provide that, during the period from the date of the Tender and Support Agreements until the earlier to occur of (i) the Effective Time, (ii) the date the Merger Agreement is validly terminated or (iii) certain amendments are made to the Merger Agreement or the Offer (such period, the “Support Period”), the Supporting Stockholders will vote their Subject Shares against certain alternative corporate transactions (as more fully described in the form of Tender and Support Agreement), and that Parent is appointed as the Supporting Stockholders’ attorney-in-fact and proxy to so vote their Subject Shares. The Tender and Support Agreements terminate upon the expiration of the Support Period.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms of Tender and Support Agreements, copies of which are filed as Exhibit Exhibits (d)(2) and Exhibit (d)(3) of to the Schedule TO and is are incorporated herein by reference. For Concurrently with entry into the Merger Agreement, Xxxxx xnd Purchaser entered into a complete understanding (i) Tender and Support Agreement (as it may be amended from time to time, the “RA Tender and Support Agreement”), dated as of June 18, 2023, with RA Capital and (ii) Tender and Support Agreement (as it may be amended from time to time, the “Founder Tender and Support Agreement”), dated as of June 18, 2023, with J. Xxxxx Xxxxxx. Collectively, as of June 27, 2023, the Supporting Stockholders beneficially owned approximately 18% of the outstanding Shares. Xxxxx xnd the Purchaser expressly disclaim beneficial ownership of all Shares covered by the Tender and Support Agreements, you are encouraged to read the full text of the forms of Tender and Support Agreements. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July 28, 2016 (the “Tender and Support Agreements”) with Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx and NetSuite Restricted Holdings LLC, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 Shares (or approximately 43.2% of all Shares outstanding as of July 28, 2016). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 Shares as of July 28, 2016 (or approximately 43.4% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28, 2016). The Tender and Support Agreements provide that, no later than three Business Days 10 business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer, and not withdraw, all outstanding Shares such Table of Contents each Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement Agreements or that such the Supporting Stockholder Stockholders acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). During the period from June 18, 2023 until the termination of the Tender and Support Agreements (the “Support Period”), the Supporting Stockholders have agreed, in connection with any annual or special meeting of the stockholders of DICE, however called, including any adjournment or postponement thereof, or any action proposed to be taken by written consent (if permitted at such time) of DICE’s stockholders, to (i) appear at each such meeting or otherwise cause all Subject Shares to be counted as present at the meeting for purposes of determining a quorum and (ii) be present (in person or by proxy) and vote or cause to be voted, or deliver (or cause to be delivered) a written consent with respect to all of the Subject Shares, (x) against any Company Takeover Proposal (other than the Merger), (y) against any change in membership of the DICE Board that is not recommended or approved by the DICE Board, and (z) against any other proposed action, agreement or transaction involving DICE that would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect, or prevent the consummation of, the Offer, the Merger or the other Transactions. During the Support Period, each Supporting Stockholder has further agreed not to, directly or indirectly, (i) create or permit to exist any lien, other than certain permitted liens, on any of such Supporting Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gift, hedge, pledge, grant a participation interest in, hypothecate or otherwise dispose of, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Supporting Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract with respect to any Transfer of such Supporting Stockholder’s Subject Shares or any interest therein, (iv) grant or permit the grant of any proxy, power of attorney or other authorization or consent in or with respect to any of such Supporting Stockholder’s Subject Shares, (v) deposit or permit the deposit of any of such Supporting Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Supporting Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the compliance with such Supporting Stockholder’s obligations thereunder in any material respect, otherwise make any representation or warranty of such Supporting Stockholder therein untrue or incorrect, or have the effect of preventing or disabling such Supporting Stockholder from complying with any of their obligations under the Tender and Support Agreements. The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting Stockholders, solely in their capacities as stockholders of DICE, will not, and will cause their representatives not to, directly or indirectly (i) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of providing information or taking any other action) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Company Takeover Proposal, (ii) directly or indirectly engage in, enter into or participate in any discussions or negotiations with any person regarding, or furnish to any person any information or afford access to the business, properties, assets, books or records of DICE to, or take any other action to assist, knowingly facilitate or knowingly encourage any effort by any person, in each case in connection with or in response to any inquiry, offer or proposal that constitutes, or could reasonably be expected to lead to any Company Takeover Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement or other similar instrument relating to any Company Takeover Proposal, (iv) knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the Offer or (vi) resolve or agree to do any of the foregoing. The Tender and Support Agreements provide that the Supporting Stockholders’ obligations under the agreements are solely in their respective capacities as stockholders of DICE, and not, if applicable, in such stockholders’ or any of their affiliates’ capacity as a director, officer or employee of DICE, and that nothing in the Tender and Support Agreements in any way restricts a director or officer of DICE in the taking of any actions (or failures to act) in his or her capacity as a director or officer of DICE, or in the exercise of his or her fiduciary duties as a director or officer of DICE.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms form of Tender and Support AgreementsAgreement, copies a copy of which are is filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms form of Tender and Support AgreementsAgreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July 28May 1, 2016 (the “Tender and Support Agreements”) with Xxxxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxx XxXxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx XxXxxxxxXxxxxx Xxx, Xxxxxx Xxxx Xxxxxxxxx, Xxx Xxxxxx and NetSuite Restricted Holdings LLCXxxxxx Xxxxx and New Enterprise Associates 12, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) Limited Partnership (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Company Compensatory Awards (other than shares of restricted stock and performance shares)Awards, as of July 28May 1, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 24,572,261 Shares (or approximately 43.245.9% of all Shares outstanding as of July 28May 1, 2016). Including Shares which may be issued under NetSuite Company Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28May 1, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 26,738,417 Shares as of July 28May 1, 2016 (or approximately 43.449.9% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28May 1, 2016). The Tender and Support Agreements provide that, no later than three Business Days five (5) business days after the commencement of the Offer, each Supporting Stockholder will tender tender, or cause to be tendered, into the Offer, and not withdraw, all outstanding Shares such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). The Tender and Support Agreements also provide that, during the period from the date of the Tender and Support Agreements until the earlier to occur of: (i) the Effective Time, (ii) the date the Merger Agreement is validly terminated; or (iii) the date of any modification, waiver or amendment of the Merger Agreement in a manner that reduces the Offer Price or changes the form of consideration payable thereunder to such Supporting Stockholder (such period, the “Support Period”), the Supporting Stockholders will vote their Subject Shares against certain alternative corporate transactions (as more fully described in the form of Tender and Support Agreement), and that Xxxxxx is appointed as the Supporting Stockholders’ attorney-in-fact and proxy to so vote their Subject Shares.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements Agreement (as defined described below). The following description of the Tender and Support Agreements Agreement is only a summary and is qualified in its entirety by reference to the forms form of Tender and Support AgreementsAgreement, copies a copy of which are is filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support AgreementsAgreement, you are encouraged to read the full text of the forms form of Tender and Support AgreementsAgreement. Concurrently with entering into the Merger Agreement, Parent Xxxxxx and Purchaser Xxxxxxxxx entered into a Tender and Support Agreements Agreement dated as of July 28June 22, 2016 2022 (the “Tender and Support AgreementsAgreement”) with each of Xxxxx Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, Xxxx XxxxxxxxPhD., Xxxxx XxXxxxxxXxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., and NetSuite Restricted Holdings LLCXxxx Xxxxx, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) M.D., Ph.D. (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as As of July 285, 20162022, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 Shares (directly or indirectly own approximately 43.21.02% of all Shares outstanding as of July 28, 2016)issued and outstanding. Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 Shares as of July 28, 2016 (or approximately 43.4% of the total Parent expressly disclaims beneficial ownership of all Shares that are outstanding covered by each Tender and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28, 2016)Support Agreement. The Tender and Support Agreements provide Agreement provides that, no later than three Business Days ten (10) business days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer, and not withdraw, Offer all of the outstanding Shares beneficially owned by such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that any Shares subsequently acquired by such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its Tender and Support Agreement has been terminated. Each Tender and Support Agreement also provides that, in connection with any meeting of stockholders of the Company, or any action by written consent, the applicable Supporting Stockholder will vote all of the Subject Shares against any Acquisition Proposal, or other proposal, action, agreement or transaction TABLE OF CONTENTS involving the Company that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effect, or prevent the consummation of the Offer or the Merger or the other transactions contemplated by the Merger Agreement. The Supporting Stockholder, solely in its capacity as a stockholder of the Company, will not and will instruct its Representatives not to directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; ​ • solicit, initiate or knowingly facilitate or knowingly encourage (including by way of providing non-public information) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regarding, or the making of any proposal or offer that, constitutes or could reasonably be expected to lead to an Acquisition Proposal; ​ • engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or ​ • knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the Offer. ​ The Tender and Support Agreement will terminate automatically upon the first to occur of (a) the termination of the Merger Agreement, (b) the Effective Time, (c) any decrease to the Offer Price, or (d) the termination of the Tender and Support Agreement by written notice from Parent to such Supporting Stockholder.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms form of Tender and Support AgreementsAgreement, copies a copy of which are is filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms form of Tender and Support AgreementsAgreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July 28June 22, 2016 2014 (the “Tender and Support Agreements”) with Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxx XxxxxxxxXxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx XxXxxxxxXxxxx, Xxxxxx X. Xxxx and NetSuite Restricted Holdings LLCXxxxx, an entity controlled by Xxxxxxxx X. X. Xxxxxxxxxxxx, X. Xxxxxxx (“NRH”) Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares)options, as of July 28June 25, 20162014, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 313,093 Shares (or approximately 43.20.4% of all Shares outstanding as of July 28June 25, 20162014). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares options which are exercisable for or may become vested and settled for Shares within 60 days of July 28June 25, 20162014, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 2,868,213 Shares as of July 28June 25, 2016 2014 (or approximately 43.43.8% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28June 25, 2016). The Tender and Support Agreements provide that, no later than three Business Days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer, and not withdraw, all outstanding Shares such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”2014).

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms of Tender and Support Agreements, copies of which are filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms of Tender and Support Agreements. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into a (i) Tender and Support Agreements Agreement (as it may be amended from time to time, the “Baupost Tender and Support Agreement”), dated as of July 28August 2, 2016 2021, with The Baupost Group, LLC (“Baupost”) and (ii) Tender and Support Agreement (as it may be amended from time to time, the “Xxxxxx Xxxxxx and Support Agreement”), dated as of August 2, 2021, with Xxxxxx X. Xxxxxx, Xx., the Xxxxxx X. Xxxxxx, Xx. Trust – 2007 and Xxxxxx Xxxxxx 2014 Irrevocable Family Trust (collectively, “Xxxxxx” and, together with the Baupost, the “Supporting Stockholders”). Collectively, as of August 2, 2021, the Supporting Stockholders owned 18,998,292 outstanding Shares (or approximately 25.1% of all Shares outstanding. Parent and the Purchaser expressly disclaim beneficial ownership of all Shares covered by the Tender and Support Agreements”) with Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx and NetSuite Restricted Holdings LLC, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 Shares (or approximately 43.2% of all Shares outstanding as of July 28, 2016). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 Shares as of July 28, 2016 (or approximately 43.4% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28, 2016). The Tender and Support Agreements provide that, no later than three Business Days eight (8) business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer, and not withdraw, all outstanding Shares such the Supporting Stockholder owns Stockholders own of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement Agreements or that such the Supporting Stockholder acquires record ownership or Stockholders acquire beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). During the period from August 2, 2021 until the termination of the Tender and Support Agreements (the “Support Period”), the Supporting Stockholders have agreed, in connection with any meeting of stockholders of Prevail, or any action by written consent, to (i) appear at such meeting or otherwise cause all Subject Shares to be counted as present at the meeting for purposes of determining a quorum and (ii) be present (in person or in proxy) and vote or cause to be voted, or deliver or cause to be delivered a written consent with respect to all of the Subject Shares, (A) in favor of the adoption of the Merger Agreement, and in favor of any other matters presented or proposed as to approval of the Offer, (B) against approval of any proposal made in opposition to, in competition with, or inconsistent with, the Merger Agreement, the Offer or the Merger or any other transactions contemplated by the Merger Agreement, (C) against any action, agreement or transaction involving Prevail that would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect, or prevent the consummation of, the Offer, the Merger or the Transactions, (D) against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation Table of Contents or warranty or any other obligation or agreement of the Company contained in the Merger Agreement and (E) in favor of any other matter necessary or appropriate to the consummation of the transactions contemplated by the Merger Agreement. During the Support Period, the Supporting Stockholders have further agreed not to, directly or indirectly, (i) sell, pledge, encumber, hypothecate, assign, grant an option with respect to (or otherwise enter into a hedging arrangement with respect to), transfers, tenders or disposes (by merger, by testamentary disposition, by operation of law or otherwise) of such Share or any interest in or right to such Share, (ii) deposit any Share into a voting trust or enters into a voting agreement or arrangement or grants any proxy or power of attorney with respect thereto that is inconsistent with this Agreement or (iii) agree or commit (whether or not in writing) to take any of the actions referred to in the foregoing clause (i) or (ii) (collectively, “Transfer”). The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting Stockholders, solely in their capacities as stockholders of the Company, will cease any direct or indirect solicitation, encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal (as defined in the Tender and Support Agreements), and the Supporting Stockholders will not (i) continue any direct or indirect solicitation, knowing encouragement, knowing facilitation (including by way of providing non-public information), discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal and (ii) directly or indirectly, (A) solicit, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal or (C) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; in each case, except to the extent that at such time the Company is permitted to take any such action pursuant to the Merger Agreement. The Tender and Support Agreements terminate upon the earliest of (i) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VIII thereof, (ii) the Effective Time, (iii) the date of any material modification, material waiver or material amendment to any provision of the Merger Agreement or (iv) an Adverse Change Recommendation.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms of Tender and Support Agreements, copies of which are filed as Exhibit Exhibits (d)(2) and Exhibit ), (d)(3) of and (d)(4) to the Schedule TO and is are incorporated herein by reference. For Concurrently with entry into the Merger Agreement, Xxxxx and Purchaser entered into a complete understanding (i) Tender and Support Agreement (as it may be amended from time to time), dated as of October 2, 2023, with Xxx X. XxXxxx and affiliates, (ii) Tender and Support Agreement (as it may be amended from time to time), dated as of October 2, 2023, with Xxxxx Xxxxxxx Xxxxxx and affiliates and (iii) Tender and Support Agreement (as it may be Table of Contents amended from time to time), dated as of October 2, 2023, with Xxxx X. Xxxxxxxx and affiliates. Collectively, as of October 2, 2023, the Supporting Stockholders beneficially owned approximately 15% of the outstanding Shares. Xxxxx and the Purchaser expressly disclaim beneficial ownership of all Shares covered by the Tender and Support Agreements, you are encouraged to read the full text of the forms of Tender and Support Agreements. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of July 28, 2016 (the “Tender and Support Agreements”) with Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxx and NetSuite Restricted Holdings LLC, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) (each a “Supporting Stockholder”). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 Shares (or approximately 43.2% of all Shares outstanding as of July 28, 2016). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of July 28, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 Shares as of July 28, 2016 (or approximately 43.4% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28, 2016). The Tender and Support Agreements provide that, no later than three Business Days 10 business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer, and not withdraw, all outstanding Shares such (other than POINT stock options that are not exercised and POINT performance stock units that are not settled during the Support Period (as defined below)) each Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement Agreements or that such the Supporting Stockholder Stockholders acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “Subject Shares”). During the period from October 2, 2023 until the termination of the Tender and Support Agreements (the “Support Period”), the Supporting Stockholders have agreed, in connection with any annual or special meeting of the stockholders of POINT, however called, including any adjournment or postponement thereof, or any action proposed to be taken by written consent (if permitted at such time) of POINT’s stockholders, to (i) appear at each such meeting or otherwise cause all Subject Shares to be counted as present at the meeting for purposes of determining a quorum and (ii) be present (in person or by proxy) and vote or cause to be voted, or deliver (or cause to be delivered) a written consent with respect to all of the Subject Shares, (x) against any Company Takeover Proposal, (y) against any change in membership of the POINT Board that is not recommended or approved by the POINT Board, and (z) against any other proposed action, agreement or transaction involving POINT that would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect, or prevent the consummation of, the Offer, the Merger or the other Transactions. For so long as each Tender and Support Agreement has not been validly terminated in accordance with its terms, each Supporting Stockholder irrevocably appoints Lilly (and any person or persons designated by Xxxxx) as its attorney-in-fact and proxy with full power of substitution and resubstitution, to the full extent of such Supporting Stockholder’s voting rights with respect to all such Supporting Stockholder’s Subject Shares (which proxy is irrevocable (and as such will survive and not be affected by the death, incapacity, mental illness or insanity of such Supporting Stockholder) and which appointment is coupled with an interest, including for purposes of Section 212 of the DGCL) to vote (or issue instructions to the record holder to vote), and to execute (or issue instructions to the record holder to execute) written consents with respect to, all such Supporting Stockholder’s Subject Shares solely on the matters described in, and in accordance with the provisions of, each Tender and Support Agreement, if, and only if, the Supporting Stockholder fails to comply with the provisions thereof (such proxy, the “Conditional Proxy”). The Conditional Proxy was given to secure the obligations of such Supporting Stockholder under each Tender and Support Agreement, and in consideration of and as an additional inducement of Lilly and Purchaser to enter into the Merger Agreement, and is irrevocable. The Conditional Proxy will not be terminated by operation of any law or upon the occurrence of any other event other than upon the valid termination of each Tender and Support Agreement in accordance with its terms. Xxxxx may terminate the Conditional Proxy with respect to a Supporting Stockholder at any time in its sole and absolute discretion by written notice provided to such Supporting Stockholder. Such Supporting Stockholder agrees to execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the Conditional Proxy contained herein and hereby revokes any proxy previously granted by such Supporting Stockholder with respect to the Subject Shares that covers matters addressed by each Tender and Support Agreement. During the Support Period, each Supporting Stockholder has further agreed not to, directly or indirectly, (i) create or permit to exist any lien, other than certain permitted liens, on any of such Supporting Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gift, hedge, pledge, grant a participation interest in, hypothecate or otherwise dispose of, or enter into any derivative arrangement with respect to (collectively, Table of Contents “Transfer”), any of such Supporting Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract with respect to any Transfer of such Supporting Stockholder’s Subject Shares or any interest therein, (iv) grant or permit the grant of any proxy, power of attorney or other authorization or consent in or with respect to any of such Supporting Stockholder’s Subject Shares, (v) deposit or permit the deposit of any of such Supporting Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Supporting Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of, and compliance with, such Supporting Stockholder’s obligations thereunder in any material respect, otherwise make any representation or warranty of such Supporting Stockholder therein untrue or incorrect, or have the effect of preventing or disabling such Supporting Stockholder from performing, and complying with, any of their obligations under the Tender and Support Agreements. The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting Stockholders, solely in their capacities as stockholders of POINT, will not, and will cause their representatives not to, directly or indirectly (i) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of providing information or taking any other action) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Company Takeover Proposal, (ii) directly or indirectly engage in, enter into or participate in any discussions or negotiations with any person regarding, or furnish to any person any information or afford access to the business, properties, assets, books or records of POINT to, or take any other action to assist, knowingly facilitate or knowingly encourage any effort by any person, in each case in connection with or in response to any inquiry, offer or proposal that constitutes, or could reasonably be expected to lead to any Company Takeover Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement or other similar instrument relating to any Company Takeover Proposal, (iv) knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the Offer or (vi) resolve or agree to do any of the foregoing. The Tender and Support Agreements provide that the Supporting Stockholders’ obligations under the agreements are solely in their respective capacities as stockholders of POINT, and not, if applicable, in such stockholders’ or any of their affiliates’ capacity as a director, officer or employee of POINT, and that nothing in the Tender and Support Agreements in any way restricts a director or officer of POINT in the taking of any actions (or failures to act) in his or her capacity as a director or officer of POINT, or in the exercise of his or her fiduciary duties as a director or officer of POINT. Each Tender and Support Agreement terminates automatically upon the earliest of (i) the valid termination of the Merger Agreement in accordance with its terms, (ii) the Effective Time, (iii) the termination of such Tender and Support Agreement by written notice of termination from Lilly to the applicable Supporting Stockholder(s) or (iv) the date on which any amendment or change to the Merger Agreement or the Offer is effected without the applicable Supporting Stockholders’ consent that decreases the amount, or changes the form, of consideration payable to all stockholders of POINT pursuant to the terms of the Merger Agreement.

Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreements (as defined below). The following description of the Tender and Support Agreements is only a summary and is qualified in its entirety by reference to the forms form of Tender and Support Agreements, copies a copy of which are is filed as Exhibit (d)(2) and Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreements, you are encouraged to read the full text of the forms form of Tender and Support Agreements. Concurrently with entering into the Merger Agreement, Parent Adobe and Purchaser entered into Tender and Support Agreements dated as of July 28November 10, 2016 (the “"Tender and Support Agreements”") with Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxx XxxxxxxxTrinity Ventures X, Xxxxx XxXxxxxxL.P., Xxxxxx Xxxx Trinity X Side-By-Side Fund, L.P. and NetSuite Restricted Holdings LLCTrinity X Entrepreneurs' Fund, an entity controlled by Xxxxxxxx X. Xxxxxxx (“NRH”) L.P. (each a “"Supporting Stockholder”"). Excluding Shares underlying NetSuite Compensatory Awards (other than shares of TubeMogul stock options and restricted stock and performance shares)units, as of July 28November 9, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 34,931,479 5,829,554 Shares (or approximately 43.215.8% of all Shares outstanding as of July 28November 9, 2016). Including Shares which may be issued under NetSuite Compensatory Awards to purchase Shares TubeMogul stock options and restricted stock units which are exercisable for or may become vested and settled for Shares within 60 days of July 28November 9, 2016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 35,291,317 6,888,463 Shares as of July 28November 9, 2016 (or approximately 43.418.2% of the total of all Shares that are outstanding and all additional Shares that are deemed outstanding for purposes of calculating the Supporting Stockholders’ ' percentage ownership in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act as of July 28November 9, 2016). The Tender and Support Agreements provide that, no later than three Business Days ten business days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer, and not withdraw, all outstanding Shares such Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the date of the Tender and Support Agreement or that such Supporting Stockholder acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such date during the Support Period (as defined below) (collectively, the “"Subject Shares”"). The Tender and Support Agreements for the Supporting Stockholders terminate upon the earlier of (i) the valid termination of the Merger Agreement, or (ii) the Effective Time. During the period from November 10, 2016 until the termination of the Tender and Support Agreements (the "Support Period"), the Supporting Stockholders will vote their Shares against certain alternative corporate transactions (as more fully described in the form of Tender and Support Agreement). During the applicable Support Period, Adobe is appointed as the Supporting Stockholders' attorney-in-fact and proxy to so vote their Subject Shares.