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 form of Tender and Support Agreement, a copy of which is filed as Exhibit (d)(2) 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 form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of June 22, 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, Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, X. Xxxx Xxxxx, X. X. Xxxxxxxxxxxx, X. Xxxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (each a “Supporting Stockholder”). Excluding Shares underlying options, as of June 25, 2014, the Supporting Stockholders collectively beneficially owned, in the aggregate, 313,093 Shares (or approximately 0.4% of all Shares outstanding as of June 25, 2014). Including Shares which may be issued under options which are exercisable for or may become vested and settled for Shares within 60 days of June 25, 2014, the Supporting Stockholders collectively beneficially owned, in the aggregate, 2,868,213 Shares as of June 25, 2014 (or approximately 3.8% 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 June 25, 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 form of Tender and Support AgreementAgreements, a copy of which is filed as Exhibit (d)(2) 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 form of Tender and Support AgreementAgreements. Concurrently with entering into the Merger Agreement, Parent Adobe and Purchaser entered into Tender and Support Agreements dated as of June 22November 10, 2014 2016 (the “"Tender and Support Agreements”") with Xxxxx X. XxxxxxxXxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx X. Xxxx Xxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxx XxxxxxxxXxxxx Xxxx, Xxxx XxxxxxXxxxx, Xxxxxx XxxxxxxXxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx XxxxxTrinity Ventures X, X. Xxxx XxxxxL.P., X. X. XxxxxxxxxxxxTrinity X Side-By-Side Fund, X. Xxxxxxx XxxxxxxxxL.P. and Trinity X Entrepreneurs' Fund, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx L.P. (each a “"Supporting Stockholder”"). Excluding Shares underlying optionsTubeMogul stock options and restricted stock units, as of June 25November 9, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 313,093 5,829,554 Shares (or approximately 0.415.8% of all Shares outstanding as of June 25November 9, 20142016). Including Shares which may be issued under TubeMogul stock options and restricted stock units which are exercisable for or may become vested and settled for Shares within 60 days of June 25November 9, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 2,868,213 6,888,463 Shares as of June 25November 9, 2014 2016 (or approximately 3.818.2% 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 June 25November 9, 20142016). The Tender and Support Agreements provide that, no later than 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.

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 form of Tender and Support Agreement, a copy of which is filed as Exhibit (d)(2) 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 form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of June 22April 28, 2014 2016 (the “Tender and Support Agreements”) with Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx X. XxxxXxxxxxx Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxxx, Xxxx Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, X. Xxxx Xxxxx, X. X. XxxxxxxxxxxxXxxxxxxx, X. Xxxxxxx Xxxxxx, Jr., General Xxxxx Xxxx, Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxx Xxxxxx, Northwater Capital Inc., Northwater Intellectual Property Fund L.P. 1, Northwater Intellectual Property Fund L.P. 2 and Northwater Intellectual Property Fund L.P. 3A (each a “Supporting Stockholder”). Excluding Shares underlying optionsCompany Compensatory Awards, as of June 25April 28, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 313,093 5,750,690 Shares (or approximately 0.421.4% of all Shares outstanding as of June 25April 28, 20142016). Including Shares which may be issued under options Company Compensatory Awards and warrants to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of June 25April 28, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 2,868,213 6,631,850 Shares as of June 25April 28, 2014 2016 (or approximately 3.823.9% 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 June 25April 26, 20142016). The Tender and Support Agreements provide that, no later than 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 form of Tender and Support AgreementAgreements, a copy copies of which is 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 form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into a (i) Tender and Support Agreement (as it may be amended from time to time, the “Baupost Tender and Support Agreement”), dated as of August 2, 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. The Tender and Support Agreements dated provide that, no later than eight (8) business days after the commencement of the Offer, the Supporting Stockholders will tender into the Offer, and not withdraw, all outstanding Shares the Supporting Stockholders own of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of June 22the date of the Tender and Support Agreements or that the Supporting 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, 2014 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”) with Xxxxx X. Xxxxxxx), Xxxxx Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, X. Xxxx Xxxxx, X. X. Xxxxxxxxxxxx, X. Xxxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (each a “Supporting Stockholder”). Excluding Shares underlying options, as of June 25, 2014, the Supporting Stockholders collectively beneficially ownedwill not (i) continue any direct or indirect solicitation, in the aggregateknowing encouragement, 313,093 Shares knowing facilitation (including by way of providing non-public information), discussions or approximately 0.4% of all Shares outstanding as of June 25, 2014). Including Shares which negotiations with any persons that may be issued under options which are exercisable 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 may become vested 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 settled for Shares within 60 days Support Agreements terminate upon the earliest of June 25(i) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VIII thereof, 2014(ii) the Effective Time, (iii) the Supporting Stockholders collectively beneficially owneddate of any material modification, in the aggregate, 2,868,213 Shares as of June 25, 2014 (material waiver or approximately 3.8% material amendment to any provision 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)(iMerger Agreement or (iv) under the Exchange Act as of June 25, 2014)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 form forms of Tender and Support AgreementAgreements, a copy copies of which is 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 form forms of Tender and Support AgreementAgreements. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of June 22July 28, 2014 2016 (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, Xxxxxxx XxxxxxxxxxXxxx Xxxxxxxx, Xxxxx XxXxxxxx, Xxxxxx XxxxxXxxx and NetSuite Restricted Holdings LLC, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, X. Xxxx Xxxxx, X. X. Xxxxxxxxxxxx, an entity controlled by Xxxxxxxx X. Xxxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (“NRH”) (each a “Supporting Stockholder”). Excluding Shares underlying optionsNetSuite Compensatory Awards (other than shares of restricted stock and performance shares), as of June 25July 28, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 313,093 34,931,479 Shares (or approximately 0.443.2% of all Shares outstanding as of June 25July 28, 20142016). Including Shares which may be issued under options NetSuite Compensatory Awards to purchase Shares which are exercisable for or may become vested and settled for Shares within 60 days of June 25July 28, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 2,868,213 35,291,317 Shares as of June 25July 28, 2014 2016 (or approximately 3.843.4% 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 June 25July 28, 20142016). 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 form of Tender and Support Agreement, a copy of which is filed as Exhibit (d)(2) 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 form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Parent and Purchaser entered into Tender and Support Agreements dated as of June 22May 1, 2014 2016 (the “Tender and Support Agreements”) with Xxxxx X. Xxxxxxx, Xxxxx XxxxxxxxxXxxxxx Xxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxx XxxxxxxXxxx XxXxxxxxxx, Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx XxxxxxxxxxXxxx Xxxxxxxx, Xxxxxx XxxxxXxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, X. Xxxx Xxxxx, X. X. Xxxxxxxxxxxx, X. Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxx X. Xxx Xxxxxx and Xxxxxx X. Xxxxxx Xxxxx and New Enterprise Associates 12, Limited Partnership (each a “Supporting Stockholder”). Excluding Shares underlying optionsCompany Compensatory Awards, as of June 25May 1, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 313,093 24,572,261 Shares (or approximately 0.445.9% of all Shares outstanding as of June 25May 1, 20142016). Including Shares which may be issued under options Company Compensatory Awards which are exercisable for or may become vested and settled for Shares within 60 days of June 25May 1, 20142016, the Supporting Stockholders collectively beneficially owned, in the aggregate, 2,868,213 26,738,417 Shares as of June 25May 1, 2014 2016 (or approximately 3.849.9% 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 June 25May 1, 20142016). The Tender and Support Agreements provide that, no later than five (5) business days after the commencement of the Offer, each Supporting Stockholder will 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.