EXECUTION VERSION AGREEMENT AND PLAN OF MERGER dated as of February 26, 2020 among GAIN CAPITAL HOLDINGS, INC., INTL FCSTONE INC. and GOLF MERGER SUB I INC. #92864921v30
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EXECUTION VERSION AGREEMENT AND PLAN OF MERGER dated as of February 26, 2020 among GAIN CAPITAL HOLDINGS, INC., INTL FCSTONE INC. and GOLF MERGER SUB I INC. #92864921v30
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AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of February 26, 2020 among GAIN Capital Holdings, Inc., a Delaware corporation (the “Company”), INTL FCStone Inc., a Delaware corporation (“Parent”), and Golf Merger Sub I Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). W I T N E S S E T H: WHEREAS, the respective Boards of Directors of the Company and Merger Sub have (i) approved the execution of this Agreement and the transactions contemplated hereby and declared it advisable that the respective stockholders of the Company and Merger Sub approve and adopt this Agreement pursuant to which, among other things, Parent would acquire the Company by means of a merger of Merger Sub with and into the Company on the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of Delaware Law and (ii) determined that the transactions contemplated by the Agreement, including the Merger, are in the best interests of, respectively, the Company and Merger Sub and their respective stockholders. WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s willingness to enter into this Agreement, Parent has entered into Voting and Support Agreements (each, a “Voting and Support Agreement”) and, collectively, the “Voting and Support Agreements”) with certain stockholders of the Company, in each case in the form agreed to by the parties. NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS Section 1.01. Definitions. As used herein, the following terms have the following meanings: “1933 Act” means the Securities Act of 1933. “1934 Act” means the Securities Exchange Act of 1934. “Acquisition Proposal” means any proposal or offer from any Third Party relating to any (i) direct or indirect acquisition (whether in a single transaction or a series of related transactions) of assets of the Company or its Subsidiaries (including securities of Subsidiaries) equal to 15% or more of the consolidated assets of the Company, or to which 15% or more of the revenues or earnings of the Company on a consolidated basis are attributable, (ii) direct or indirect acquisition (whether in a single transaction or a series of related transactions) of 15% or more of any class of equity or voting securities of (1) the Company or (2) any of its Subsidiaries to which 15% or more of the revenues or earnings of the Company on a consolidated basis are #92864921v30
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attributable, (iii) tender offer or exchange offer that, if consummated, would result in such Third Party beneficially owning 15% or more of any class of equity or voting securities of (1) the Company or (2) any of its Subsidiaries to which 15% or more of the revenues or earnings of the Company on a consolidated basis are attributable, or (iv) merger, consolidation, share exchange, business combination, joint venture, reorganization, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, under which such Third Party would acquire, directly or indirectly, (A) assets (including securities of Subsidiaries) equal to 15% or more of the consolidated assets of the Company, or to which 15% or more of the revenues or earnings of the Company on a consolidated basis are attributable, or (B) beneficial ownership of 15% or more of any class of equity or voting securities of (1) the Company or (2) any of its Subsidiaries to which 15% or more of the revenues or earnings of the Company on a consolidated basis are attributable. “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. “Applicable Law” means, with respect to any Person, any domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, Order, injunction, judgment, decree, ruling, instrument, or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise. “Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close. “CFTC” means the U.S. Commodity Futures Trading Commission. “Code” means the U.S. Internal Revenue Code of 1986. “Collective Bargaining Agreement” means any written or oral agreement, memorandum of understanding or other contractual obligation between the Company or any of its Subsidiaries and any labor organization or other authorized employee representative representing any director, officer, employee or individual independent contractor of the Company or any of its Subsidiaries. “Company 10-K” means the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2018. “Company 401(k) Plan” means the GAIN Capital Holdings, Inc. 401k Plan, as amended from time to time. “Company Balance Sheet” means the consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2019 and the footnotes thereto set forth in the Company’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2019. 2 #92864921v30
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“Company Balance Sheet Date” means September 30, 2019. “Company Disclosure Schedule” means the disclosure schedule dated as of the date hereof regarding this Agreement that has been provided by the Company to Parent and Merger Sub prior to the execution of this Agreement. “Company Equity Awards” means the Company Stock Options, the Company Restricted Stock Units and the Company Restricted Stock Awards. “Company ESPP” means the Company’s 2011 Employee Stock Purchase Plan. “Company ICP” means the Company’s 2015 Omnibus Incentive Compensation Plan, the Company’s 2010 Omnibus Incentive Compensation Plan (as amended from time to time) and any predecessor stock option, stock incentive, stock award, or other equity compensation plans thereto. “Company Material Adverse Effect” means any event, change, development, circumstance or effect that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the financial condition, business or results of operations of the Company and its Subsidiaries, taken as a whole, excluding any event, change, development, circumstance or effect to the extent arising out of any of the following: (A) changes in GAAP or in the regulatory accounting requirements applicable to any industry in which the Company and its Subsidiaries operate, (B) changes in the financial or securities markets or general economic or political conditions in the United States or any other country or region, (C) changes (including changes in Applicable Law or interpretations thereof) or conditions generally affecting any of the industries in which the Company and its Subsidiaries operate, (D) acts of war, sabotage, terrorism or natural disasters, (E) the execution, delivery and performance of this Agreement or the public announcement, pendency or consummation (excluding, in the case of consummation, the Specified Representations) of the transactions contemplated by this Agreement including the impact thereof on the relationships, contractual or otherwise, of the Company and any of its Subsidiaries with employees, customers, suppliers or other Third Parties, (F) any Transaction Litigation, (G) any failure in and of itself by the Company and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance or integration synergies for any period (provided that the exception in this clause (G) shall not preclude Parent from asserting that any underlying facts giving rise or contributing to such failure should be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect), (H) any action taken (or omitted to be taken) at the written request of Parent or Merger Sub, (I) any change, in and of itself, in the price and/or trading volume of the Company Stock on NYSE or any other market in which such securities are quoted for purchase and sale (provided that the exception in this clause (I) shall not preclude Parent from asserting that any underlying facts giving rise or contributing to such change should be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect) or (J) any action taken by the Company or any of its Subsidiaries that is required pursuant to this Agreement, including any actions required under this Agreement to obtain any approval or 3 #92864921v30
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authorization under applicable antitrust, competition or other Applicable Laws for the consummation of the Merger, except in the case of clauses (A), (B), (C) and (D), to the extent that any such event, change, development, circumstance or effect has a materially disproportional adverse effect on the Company and its Subsidiaries, taken as a whole, relative to the adverse effect such event, change, development, circumstance or effect has on other companies in the same industry or industries in the Company and its Subsidiaries operate (in which case the incremental, but only the incremental, materially disproportionate adverse effect may be taken into account in determining whether a Company Material Adverse Effect has occurred). “Company Rights” means the Preferred Stock purchase rights issued pursuant to the Company Rights Agreement. “Company Rights Agreement” means the Rights Agreement dated as of April 9, 2013, between the Company and Broadridge Corporate Issuer Solutions, Inc., as rights agent, as amended by that certain Amendment No. 1 to the Rights Agreement, dated as of April 8, 2016 and as further amended by that certain Amendment No. 2 to the Rights Agreement, dated as of April 8, 2019. “Company Stock” means the common stock, $0.00001 par value, of the Company, together with the associated Company Rights. “Consent” means any consent, approval, waiver, license, permit, exemption, franchise, clearance, Order or authorization. “Contract” means any legally binding written or oral contract, agreement, obligation, understanding, instrument, lease or license. “De Minimis Effect” means losses or damages equal to .75% or more of the aggregate Merger Consideration payable to all stockholders of the Company. “Delaware Law” means the General Corporation Law of the State of Delaware. “Environmental Laws” means any Applicable Law relating to (i) the protection, preservation, or restoration of the environment (including air, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource) or (ii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances. “Environmental Permits” means all Consents (including Consents required by contract), variances, exemptions, orders, certificates, approvals and other similar authorizations, in each case, of Governmental Authorities required by Environmental Law for the business of the Company or any of its Subsidiaries, as applicable. “ERISA” means the Employee Retirement Income Security Act of 1974. 4 #92864921v30
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“ERISA Affiliate” of any entity means any other entity that, together with such entity, would (at any relevant time) be treated as a single employer under Section 414 of the Code. “Excluded Information” shall mean (1) pro forma financial statements; (2) description of all or any portion of the Financing, including any “description of notes”, and other information customarily provided by financing sources or their counsel; (3) risk factors relating to all or any component of the Financing; (4) “segment” financial information; and (5) other information required by Rules 3-05, 3-09, 3-10 or 3-16 of Regulation S-X under the Securities Act, any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the Securities Act and, if the Financing does not involve an offering of securities on a registered basis with the SEC, any other information customarily excluded from an offering memorandum for private placements of debt securities under Rule 144A promulgated under the Securities Act. “Financing Parties” means any entity that has committed to provide or otherwise entered into agreements in connection with any Financing and their respective Affiliates and their respective Affiliates, Representatives, stockholders, limited partners and their respective successors and assignees; provided that neither Parent nor any Affiliate of Parent shall be a Financing Party. “Fraud” means willfully and with actual knowledge (and not imputed or constructive knowledge) committing common law fraud with the specific intent to deceive and mislead. For the avoidance of doubt, “Fraud” does not include equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including fraud) to the extent based on negligence or recklessness. “GAAP” means generally accepted accounting principles in the United States. “Governmental Authority” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency, commission, authority or official, including any political subdivision thereof and any Self-Regulatory Organization. “Hazardous Substance” means any substance, material or waste that is listed, defined, designated, or classified as hazardous, toxic, radioactive, dangerous or a “pollutant” or “contaminant” or words of similar meaning under any Applicable Law relating to the environment or natural resources or that are otherwise subject to any Environmental Law, including petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos, or asbestos-containing material, urea formaldehyde, foam insulation or polychlorinated biphenyls. “HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976. “Intellectual Property” means any and all of the following, whether or not registered, and all rights therein, arising in the United States or any other jurisdiction throughout the world: (i) trademarks, service marks, trade names, certification marks, logos, trade dress, brand names, 5 #92864921v30
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corporate names, Internet domain names, Internet account names (including social networking and media names) and other indicia of origin, together with all goodwill associated therewith or symbolized thereby, and all registrations and applications relating to the foregoing; (ii) patents and pending patent applications and all divisions, continuations, continuations-in-part, reissues, reexaminations, and any extensions thereof; (iii) registered and unregistered copyrights (including those in software), all registrations and applications to register the same, and all renewals, extensions, reversions and restorations thereof; (iv) trade secrets and rights in confidential technology and information, know-how, inventions, improvements, processes, formulae, algorithms, models, methodologies, customer and supplier lists, pricing and cost information and business and marketing plans and proposals; (v) rights in software; (vi) other similar types of proprietary or intellectual property; and (vii) claims or causes of action arising out of or related to any past, present and future infringement, misappropriation or other violation of any of the foregoing. “IT Assets” means any and all computers, software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines and other information technology equipment, and all associated documentation, owned by, or licensed or leased to, the Company or any of its Subsidiaries. “Key Employee” means the employees of the Company and its Subsidiaries set forth on Section 1.01(d) of the Company Disclosure Schedule. “knowledge” means (i) with respect to the Company, the actual knowledge, after reasonable inquiry, of the individuals listed on Section 1.01(a) of the Company Disclosure Schedule and (ii) with respect to Parent, the actual knowledge, after reasonable inquiry, of the individuals listed on Section 1.01 of the Parent Disclosure Schedule. “Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, easement, right of way, encroachment or other similar adverse claim of any kind in respect of such property or asset. “NYSE” means the New York Stock Exchange. “Order” means any order, writ, decree, judgment, award, injunction, ruling or settlement issued, promulgated, made, rendered or entered into by any Governmental Authority or arbitrator (in each case, whether temporary, preliminary or permanent). “Owned Intellectual Property” means any and all Intellectual Property owned or purported in writing to be owned by the Company or any of its Subsidiaries. “Parent Disclosure Schedule” means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by Parent to the Company. “Parent Material Adverse Effect” means any event, change, effect, development or occurrence that would reasonably be expected to prevent, impair or materially delay the ability 6 #92864921v30
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of Parent or Merger Sub to perform its obligations hereunder or prevent, impair or materially delay the consummation of the Merger or the other Transactions. “Permitted Lien” means (a) Liens for Taxes other than for current Taxes not yet due or payable or for Taxes that are being contested in good faith pursuant to appropriate Proceedings and for which the Company has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with GAAP an adequate reserve; (b) materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s, repairmen’s liens and any statutory or other similar Liens arising or incurred in the ordinary course of business by operation of Applicable Law with respect to a liability that is not yet due or delinquent or being contested in good faith; (c) pledges or deposits in the ordinary course of business consistent with past practice to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business consistent with past practice; (e) Liens, defects or irregularities in title, easements, rights-of-way, declarations, covenants, restrictions and other similar matters that would not, individually or in the aggregate, reasonably be expected to materially impair the continued business operations of the Company and its Subsidiaries, taken as a whole; (f) all applicable zoning, entitlement, conservation restrictions, building and similar codes and regulations and other land use regulations that would not, individually or in the aggregate, reasonably be expected to materially impair the continued business operations of the Company and its Subsidiaries, taken as a whole; (g) Liens to be released at or prior to Closing; (h) Liens in the ordinary course of business consistent with past practice securing obligations in respect of short-term revolving lines of credit of the Company or its Subsidiaries in effect as of the date hereof; (i) Liens relating to intercompany borrowings among the Company and its wholly-owned subsidiaries; (j) Liens set forth on Section 1.01(c) of the Company Disclosure Schedule; (k) with respect to any leased real property, any statutory or contractual Liens of landlords or Liens affecting the landlord’s interests or underlying fee interest for amounts not due and payable or that are being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP; (l) Liens in the ordinary course of business consistent with past practice in connection with prime broker relationships and (m) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business. “Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority. “Proceeding” means any legal, administrative, mediation or arbitral proceedings, claims, suits, actions or governmental or regulatory brought, conducted or heard by or before or otherwise involving any Governmental Authority or any mediator, arbitrator or arbitration panel. “Regulated Subsidiary” means each of the following Subsidiaries of the Company: GAIN Capital Group, LLC, GAIN Global Markets, Inc., GAIN Capital UK, Ltd., GAIN Capital Australia Pty Ltd., GAIN Xxxxxxx-Xxxxx.xxx Canada, Ltd, GAIN Capital Singapore Pte. Ltd., GAIN Capital Japan Co., Ltd., Global Asset Advisors, LLC, Gain GTX, LLC, Trade Facts Ltd., 7 #92864921v30
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GAIN Capital Securities, Inc., GAIN Capital Xxxxx.xxx Hong Kong, Ltd., GAIN Capital Payments, Ltd., and GTX SEF, LLC. “Regulatory Documents” means, with respect to a Person, all filings, together with any amendments required to be made with respect thereto, filed, or required to be filed, by such Person with any applicable Governmental Authority pursuant to Applicable Law or to such other entity designated by the Governmental Authority or under Applicable Law, including the applicable rules and regulations of any Governmental Authority. “Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002. “SEC” means the United States Securities and Exchange Commission. “Self-Regulatory Organization” means a self-regulatory organization, including any “self-regulatory organization” as such term is defined in Section 3(a)(26) of the 1934 Act, any “self-regulatory organization” as such term is defined in CFTC Rule 1.3 and any other U.S. or non-U.S. securities exchange, futures exchange, futures association, commodities exchange, clearinghouse or clearing organization, in each case, of which a Regulated Subsidiary is required under Applicable Law to be a member. “Specified Representations” means the representations and warranties set forth in Section 4.02(a), Section 4.03, Section 4.04, Section 4.17(f), Section 4.22 and Section 4.26. “Subsidiary” means, with respect to any Person, (i) any Person of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at any time directly or indirectly owned by such Person; or (ii) any other Person more than 50% of the outstanding voting securities of which are owned, directly or indirectly, by such first Person. “Tax” means any income, gross receipts, franchise, sales, use, ad valorem, property, payroll, withholding, excise, severance, transfer, employment, estimated, alternative or add-on minimum, value added, stamp, occupation, premium, environmental or windfall profits tax, and any other taxes, fees, levies, imposts, customs, duties, licenses or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount with respect thereto (including penalties for failure to file or late filing of any tax return, report or other filing, and any interest in respect of such penalties, additions to tax or additional amounts imposed by any federal, state, local, non-U.S. or other Taxing Authority). “Tax Return” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information. 8 #92864921v30
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“Tax Sharing Agreement” means any existing agreement binding any Person or any of its Subsidiaries that provides for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the purpose of determining any Person’s Tax liability, other than agreements entered into in the ordinary course of business that do not have as a principal purpose addressing Tax matters. “Taxing Authority” means any Governmental Authority responsible for the imposition or collection of any tax. “Third Party” means any Person, including as defined in Section 13(d) of the 1934 Act, other than Parent or any of its Affiliates. “Transactions” means the transactions contemplated by this Agreement (including the Merger). (a) Each of the following terms is defined in the Section set forth opposite such term: Term Section 2020 Convertible Notes 2.06 2022 Convertible Notes 2.06 2020 Convertible Notes Indenture 2.06 2022 Convertible Notes Indenture 2.06 Acceptable Confidentiality Agreement 6.04(f)(i) Adverse Recommendation Change 6.04(a)(iii) Agreement Preamble Antitrust Division 8.01(c) Certificates 2.03(a) Closing 2.01(b) Company Preamble Company Board Recommendation 4.02(b) Company Employee 7.05(a) Company Expense Reimbursement 11.04(c) Company Insurance Policies 4.26 Company Intervening Event 6.04(f)(iii) Company Permits 4.23 Company Plans 4.17(a) Company Registered IP 4.15(a) Company Restricted Stock Award 2.05(b) Company Restricted Stock Unit 2.05(b) Company SEC Documents 4.07(a) Company Securities 4.05(c) Company Stock Option 2.05(a) Company Stockholder Approval 4.02(a) Company Stockholder Meeting 6.02 Company Subsidiary Securities 4.06(b) 9 #92864921v30
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specified. All Exhibits, Annexes and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit, Annex or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any contract listed on Section 4.11 of the Company Disclosure Schedule, references to such contract shall not include any amendments, modifications or supplements unless also listed. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any Applicable Law. ARTICLE 2 THE MERGER Section 2.01. The Merger. (a) At the Effective Time, Merger Sub shall be merged (the “Merger”) with and into the Company in accordance with Delaware Law, whereupon the separate existence of Merger Sub shall cease, and the Company shall be the surviving corporation (the “Surviving Corporation”). (b) Subject to the provisions of Article 9, the closing of the Merger (the “Closing”) shall take place in New York City at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 as soon as possible, but in any event no later than three Business Days after the date the conditions set forth in Article 9 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at the Closing) have been satisfied or, to the extent permissible, waived by the party or parties entitled to the benefit of such conditions, or at such other place, at such other time or on such other date as Parent and the Company may mutually agree in writing. (c) At the Closing, the Company and Merger Sub shall file a certificate of merger with the Delaware Secretary of State and make all other filings or recordings required by Delaware Law in connection with the Merger. The Merger shall become effective at such time (the 11 #92864921v30
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“Effective Time”) as the certificate of merger is duly filed with the Delaware Secretary of State (or at such later time as may be specified in the certificate of merger). (d) From and after the Effective Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the Company and Merger Sub, all as provided under Delaware Law. Section 2.02. Conversion of Shares. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of any shares of Company Stock or any shares of capital stock of Parent or Merger Sub: (a) Except as otherwise provided in Section 2.02(b), Section 2.02(c) or Section 2.04, each share of Company Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive $6.00 in cash, without interest (such per share amount, the “Merger Consideration”). As of the Effective Time, all such shares of Company Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right to receive the Merger Consideration to be paid in accordance with Section 2.03, without interest. (b) Each share of Company Stock held by the Company as treasury stock or owned by Parent, Merger Sub or any other Subsidiary of Parent immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto. (c) Each share of Company Stock held by any Subsidiary of the Company immediately prior to the Effective Time shall be converted into such number of shares of stock of the Surviving Corporation such that each such Subsidiary owns the same percentage of the outstanding capital stock in the Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time. (d) Each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and, except as provided in Section 2.02(c), shall constitute the only outstanding shares of capital stock of the Surviving Corporation. Section 2.03. Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Stock (the “Certificates”) or uncertificated shares of Company Stock (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall make available to the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses 12 #92864921v30
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thereon shall affect the Merger Consideration payable hereunder and following any losses if such funds are inadequate to pay the amounts to which holders of Company Stock are entitled pursuant to this Article 2, then Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the stockholders of the Company in the amount of any such deficiency and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or Xxxxx’x Investors Service, Inc., respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs. As promptly as reasonably practicable after the Effective Time (but no later than five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. (b) Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, in each case (i) or (ii), the Merger Consideration in respect of the Company Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. (c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable. (d) After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders of shares of Company Stock twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in 13 #92864921v30
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to the Effective Time (each such restricted stock unit, a “Company Restricted Stock Unit” and each such restricted stock award, a “Company Restricted Stock Award”) shall, automatically and without any action on the holder thereof, become vested as of immediately prior to the Effective Time and shall be canceled in exchange for the right to receive (without interest) a cash payment as soon as reasonably practicable after the Effective Time from Parent to the holder thereof determined by multiplying (I) the per share Merger Consideration by (II) the number of shares of Company Stock underlying such Company Restricted Stock Unit or Company Restricted Stock Award, as applicable, as of the Effective Time, less applicable Taxes required to be withheld with respect to such payment; provided that, with respect to Company Restricted Stock Units or Company Restricted Stock Awards that constitute nonqualified deferred compensation subject to Section 409A of the Code and that are not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the Company ICP and award agreement that will not trigger a Tax or penalty under Section 409A of the Code. For the purposes of the preceding sentence, for any outstanding Company Restricted Stock Unit award subject to performance-based vesting, (A) if the performance period applicable to such award has concluded, the number of shares of Company Stock underlying such Company Restricted Stock Unit shall be reasonably determined by the compensation committee of the Board of Directors of the Company based on actual performance during the performance period and (B) if the performance period applicable to such award has not concluded, the number of shares of Company Stock underlying such Company Restricted Stock Unit shall, pursuant to the terms of such unit or award, be calculated using the target performance. (c) The Company shall, prior to the Effective Time, take all actions reasonably necessary to terminate the Company ESPP and all outstanding rights thereunder as of immediately prior to and contingent upon the Effective Time; provided that, from and after the date hereof, the Company shall take all actions reasonably necessary to ensure that (i) the existing participants thereunder may not increase their elections with respect to the current offering period, (ii) no employee who is not a participant in the Company ESPP as of the end of the Business Day immediately prior to the date hereof may become a participant in the Company ESPP, (iii) the aggregate number of shares of Company Stock purchasable during the current offering period shall not exceed 134,000 shares of Company Stock and (iv) no offering period shall commence after the current offering period and before the Effective Time. (d) Prior to the Effective Time, the Company shall adopt any resolutions and make any amendments to the terms of any equity compensation plans that are necessary to give effect to the transactions contemplated by this Section 2.05. All payments under Section 2.05(a), Section 2.05(b) and Section 2.05(c) shall be made at or as soon as practicable after the Effective Time, pursuant to the Company’s ordinary payroll practices, and shall be subject to any applicable withholding as provided by Section 2.08. The Company shall take all actions necessary to ensure that from and after the Effective Time neither Parent nor the Surviving Corporation shall be required to deliver shares of Company Stock or other capital stock of the Company to any Person under any compensation plan of the Company. 15 #92864921v30
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Consideration to be paid in respect of the shares of Company Stock represented by such Certificate, as contemplated by this Article 2. ARTICLE 3 THE SURVIVING CORPORATION Section 3.01. Certificate of Incorporation. At the Effective Time and by virtue of the Merger, the certificate of incorporation of the Company shall be amended and restated in its entirety to be identical to the certificate of incorporation of Merger Sub in effect immediately prior to the Effective Time, except (a) for Article FIRST, which shall read “The name of the corporation is GAIN Capital Holdings, Inc.” and (b) as otherwise required by Section 7.04(b), and as so amended shall be the amended and restated certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with Delaware Law. Nothing in this Section 3.01 shall affect in any way the indemnification obligations provided for in Section 7.04(b). Section 3.02. Bylaws. The bylaws of Merger Sub in effect at the Effective Time shall be the bylaws of the Surviving Corporation until amended in accordance with Applicable Law. Nothing in this Section 3.02 shall affect in any way the indemnification obligations provided for in Section 7.04(b). Section 3.03. Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with Applicable Law, (i) the directors of Merger Sub at the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers set forth on Section 3.03 of the Company Disclosure Schedule hereto shall be the officers of the Surviving Corporation. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY Subject to Section 11.05, other than with respect to the representations and warranties in Section 4.01, Section 4.02, Section 4.04(i), Section 4.05(a), the first sentence of Section 4.06(b), Section 4.20, Section 4.21, and Section 4.22, except as disclosed in any Company SEC Document filed after January 1, 2017 and before the date of this Agreement, or as set forth in the Company Disclosure Schedule, the Company represents and warrants to Parent that: Section 4.01. Corporate Existence and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all corporate powers and all governmental Consents required to carry on its business as now conducted, except for those Consents the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so 17 #92864921v30
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(e) The Company and each of its officers are, and since January 1, 2017 have been, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. The management of the Company has, in material compliance with Rule 13a-15 under the 1934 Act, (i) designed disclosure controls and procedures to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the management of the Company by others within those entities, and (ii) disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s auditors and the audit committee of the Company’s Board of Directors (A) any significant deficiencies in the design or operation of internal control over financial reporting (“Internal Controls”) which would adversely affect the Company’s ability to record, process, summarize and report financial data and have identified for the Company’s auditors any material weaknesses in Internal Controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s Internal Controls. The Company has made available to Parent prior to the date of this Agreement a true and complete summary of any material disclosure of the type described in the preceding sentence made by management to the Company’s auditors and audit committee since January 1, 2017. (f) Since January 1, 2017, the Company has complied in all material respects with the applicable listing and corporate governance rules and regulations of NYSE. (g) Since January 1, 2017, each of the principal executive officer and principal financial officer of the Company (or each former principal executive officer and principal financial officer of the Company, as applicable) has made all material certifications required by Rule 13a-14 and 15d-14 under the 1934 Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and any related rules and regulations promulgated by the SEC and NYSE, and the statements contained in any such certifications are true and complete in all material respects. (h) The Company and each of its Subsidiaries have timely filed with or furnished all filings, together with any amendments, required to be made with respect thereto, that they were required to file or furnish (as applicable) since January 1, 2017 with (i) any state regulatory authority, (ii) the SEC, (iii) the CFTC, (iv) any foreign regulatory authority, and (v) any Self- Regulatory Organization (clauses (i) – (v), each a “Regulatory Agency”), including any filing required to be filed or furnished (as applicable) pursuant to Applicable Law, or any Regulatory Agency described in clauses (i) – (v) of this paragraph, and have paid all material fees and assessments due and payable in connection therewith, with only such exceptions, in the case of each of clauses (i) through (v), as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of their respective dates, each of such reports and documents, including the financial statements, exhibits and schedules thereto, complied in all material respects with all of the statutes, rules and regulations enforced or promulgated by the Regulatory Agency with which they were filed, with such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. 22 #92864921v30
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interest in and to all Owned Intellectual Property free and clear of all Liens (other than non- exclusive licenses granted by the Company or one of its Subsidiaries in the ordinary course of business), (ii) to the knowledge of the Company, immediately following the Closing, the Company and its Subsidiaries will own or have a valid and enforceable license to use any and all of the Intellectual Property necessary to, or used or held for use in, the conduct of the respective businesses of the Company and its Subsidiaries as currently conducted, and (iii) to the knowledge of the Company, there exist no material restrictions on the use of any of the Owned Intellectual Property. (c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no current or former employee, contractor or consultant of the Company or any of its Subsidiaries owns any rights in or to any of the Owned Intellectual Property and, to the extent that any such Intellectual Property has been developed or created by any Third Party (including any current or former employee, contractor or consultant) for or on behalf of the Company or any of its Subsidiaries, the Company or one of its Subsidiaries, as applicable, has a written agreement with such Third Party with respect thereto, and thereby either (i) has obtained ownership of and is the exclusive owner of, or (ii) has obtained a right to exploit, sufficient for the conduct of the business of the Company and its Subsidiaries as currently conducted, such Intellectual Property. (d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) to the knowledge of the Company, neither the Company nor any of its Subsidiaries nor the conduct of their respective businesses has infringed, misappropriated, diluted or otherwise violated any valid and enforceable Intellectual Property rights of any Third Party, (ii) there is no Proceeding pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries (A) alleging that the Company or any of its Subsidiaries has infringed, misappropriated, diluted or otherwise violated any valid and enforceable Intellectual Property rights of any Third Party or (B) based upon, or challenging or seeking to deny or restrict, the rights of the Company or any Subsidiary in any of the Owned Intellectual Property, and (iii) to the knowledge of the Company, no Third Party has infringed, misappropriated, diluted or otherwise violated any Owned Intellectual Property. (e) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and its Subsidiaries have provided reasonable notice of its privacy and personal data collection and use policies on its websites and the Company and its Subsidiaries have complied with such policies and all Applicable Law relating to (A) the privacy of the users of the Company’s and its Subsidiaries’ respective products, services and websites and (B) the collection, use, processing, storage and disclosure of any personally-identifiable information (including personal health information and any and all “personal data” as that term is defined in the European Union’s General Data Protection Regulation and any and all other personal information, the collection, use, processing, storage and disclosure of which is regulated by an Applicable Law in relation to data protection or data privacy), (ii) there is no Proceeding pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries alleging any violation of such policies or Applicable Law, (iii) this Agreement will not violate any such policy or Applicable Law, and 26 #92864921v30
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annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Company Plans.” (b) The Company has made available to Parent a list, to the extent permitted by Applicable Law, of each Key Employee as of the date that is fifteen (15) Business Days prior to the date hereof and, as applicable, each Key Employee’s (i) name or employee identification number, (ii) date of hire, (iii) position, (iv) employment location, (v) base salary or wage rate, and (vi) most recent annual bonus received. As of the date hereof, to the Company’s knowledge, no Key Employee has indicated to the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the Transactions. (c) Neither the Company nor any ERISA Affiliate nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Company Plan subject to Title IV of ERISA. (d) Neither the Company nor any ERISA Affiliate nor any predecessor thereof contributes to, or has in the past contributed to, any multiemployer plan, as defined in Section 3(37) of ERISA. (e) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file, an application for such determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such Company Plan. Each Company Plan has been maintained in compliance with its terms and with the requirements prescribed by Applicable Law, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No events have occurred with respect to any Company Plan that could result in payment or assessment by or against the Company of any excise Taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. (f) Except as required by the terms of this Agreement, the consummation of the Transactions will not (either alone or together with any other event) (i) entitle any employee or independent contractor of the Company or any of its Subsidiaries to any payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Plan, or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent, to merge, amend or terminate any Company Plan. 29 #92864921v30
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(g) Neither the Company nor any of its Subsidiaries has any current or projected liability in respect of post-retirement health, medical or life insurance benefits for former or current employees of the Company or its Subsidiaries except as required to avoid excise Tax under Section 4980B of the Code. (h) There is no Proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Company Plan before any Governmental Authority, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (i) There has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its Affiliates relating to, or making a change in employee participation or coverage under, any Company Plan that would increase the expense of maintaining such plan above the level of expense incurred in respect thereof for the fiscal year ended on the Company Balance Sheet Date, except as required in order to comply with Applicable Law, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (j) Without limiting the generality of Section 4.17(f), no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any of its Subsidiaries in connection with the Merger (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee for any tax incurred by such individual, including under Section 409A or 4999 of the Code. (k) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with all applicable requirements of Section 409A of the Code. (l) With respect to any Company Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt prohibited transaction has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any liability under ERISA or the Code except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. (m) Each Company Plan related to employees located primarily outside of the U.S. (i) has been maintained in compliance with its terms and Applicable Law, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book- reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles, except, in each case, as would 30 #92864921v30
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(ii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity or “most favored nation” obligations or restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or, after the Effective Time, that would be binding on Parent or any of its Affiliates); (iii) promissory notes, loan agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, (A) if as borrower or guarantor, in aggregate principal amount in excess of $3,000,000, and (B) if as lender, in aggregate principal amount in excess of $1,000,000, excluding in each case (A) and (B), agreements between the Company and any of its Subsidiaries, or between and among the Company’s Subsidiaries; (iv) any Contract restricting the payment of dividends or the making of distributions to stockholders of the Company or the repurchase of stock or other equity of the Company; (v) any Collective Bargaining Agreements; (vi) any material joint venture, profit-sharing or partnership agreements; (vii) any Contracts or series of related Contracts entered into within the last three (3) years or containing any material surviving obligations (excluding confidentiality and other similar obligations) relating to the acquisition by the Company or disposition by the Company of any assets, securities or businesses for a price in excess of $5,000,000 (in each case, whether by merger, sale of stock, sale of assets or otherwise); (viii) any lease or sublease for real or personal property for which annual rental payments made by the Company and its Subsidiaries during the twelve (12) month period ended December 31, 2019 are greater than $2,000,000; (ix) all material Contracts pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license or sublicense to, or covenant not to be sued under, any Intellectual Property owned by a Third Party (other than licenses to software that is commercially available off-the-shelf or on non-discriminatory pricing terms) or (B) grants to a Third Party any license or sublicense to, or covenant not to be sued under, any Owned Intellectual Property (other than non-exclusive licenses granted in the ordinary course of business); (x) any Contracts or other transactions with any (A) executive officer or director of the Company, (B) record or, to the knowledge of the Company, beneficial owner of five percent (5%) or more of the voting securities of the Company, or (C) 32 #92864921v30
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(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of (A) any shares of the Company Stock upon the exercise of Company Stock Options, Company Restricted Stock Awards or Company Restricted Stock Units that are outstanding on the date of this Agreement in accordance with the terms of those Company Stock Options, Company Restricted Stock Awards or Company Restricted Stock Units on the date of this Agreement, (B) any Company Subsidiary Securities to the Company or any other Subsidiary of the Company and (C) any shares of Company Stock upon the conversion of the Convertible Notes in accordance with the terms of those notes on the date of this Agreement or (ii) amend any term of any Company Security or any Company Subsidiary Security, except, in each case, as required by the terms of any compensatory stock option or other compensation plan or arrangement; (d) (i) merge or consolidate with any other Person, (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) pursuant to existing contracts or commitments each of which are set forth on Section 6.01(d) of the Company Disclosure Schedule, (B) acquisitions of assets, securities or property in the ordinary course of business consistent with past practice in an amount not to exceed $1,500,000 per acquisition or $11,500,000 in the aggregate for all such acquisitions; provided, that no transaction otherwise permitted under this clause (B) shall be permitted if it, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin, alter or materially delay the Transactions, and (C) transactions (1) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company’s wholly owned Subsidiaries, or (iii) adopt or publicly propose a plan of complete or partial liquidation, dissolution, recapitalization or restructuring; (e) sell, lease, license or otherwise transfer any Subsidiary or any material assets, securities, properties, interests or businesses, other than (i) pursuant to existing contracts or commitments each of which are set forth on Section 6.01(e) of the Company Disclosure Schedule, (ii) transactions solely among the Company and one or more of its wholly owned Subsidiaries, (iii) transactions solely among the Company’s wholly owned Subsidiaries or (iv) in the ordinary course of business consistent with past practice for fair market value not to exceed $1,000,000 in the aggregate; (f) other than as expressly permitted by Section 6.01(d), make any material loans, advances or capital contributions to, or investments in, any other Person (other than (i) loans or advances between and among the Company and/or any of its wholly owned Subsidiaries, (ii) capital contributions to or investments in its wholly owned Subsidiaries and (iii) loans, advances, capital contributions or investments of $1,000,000 or less each, or $2,500,000 in aggregate); (g) incur any indebtedness for borrowed money or guarantees thereof, other than (i) in an aggregate amount not to exceed $2,500,000 or (ii) incurred between or among the Company and/or any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries or guarantees by the Company of indebtedness of any wholly owned Subsidiary; 40 #92864921v30
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(h) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith, other than any capital expenditures not to exceed $11,500,000 in the aggregate; (i) except as required under any Company Plan or by Applicable Law, grant or increase any severance or termination pay to (or amend any existing severance pay or termination arrangement with) any executive officer or director of the Company; establish, adopt or amend any Collective Bargaining Agreement or any material Company Plan or increase compensation, bonus or other benefits payable to any employee of the Company, other than increases in annual base compensation or cash bonus opportunities, subject to the aggregate maximum payout amount as set forth on Section 6.01(i) of the Company Disclosure Schedule, (excluding, for the avoidance of doubt, other employee benefits) in the ordinary course of business consistent with past practice with respect to any employee of the Company whose annual base salary does not exceed $250,000; (j) other than recruiting to fill open positions in the ordinary course of business consistent with past practice, hire any employee whose annual base salary would exceed $250,000 and whose employment is not terminable at-will; (k) sell, assign, license, sublicense, abandon, allow to lapse, transfer or otherwise dispose of, or create or incur any Lien on any material Owned Intellectual Property, other than in the ordinary course of business consistent with past practice (i) pursuant to non-exclusive licenses or (ii) for the purpose of disposing of obsolete or immaterial assets; (l) (i) voluntarily terminate, modify or amend in any respect materially adverse to the Company or any of its Subsidiaries any Material Contract other than the expiration or renewal of any Material Contract in accordance with its terms, (ii) waive any material term of, or waive any material default under, any Material Contract other than in the ordinary course of business consistent with past practice, (iii) enter into any contract which contains a change of control or similar provision that would require a material payment to the other party or parties thereto solely as a result of the consummation of the Merger or the other transactions contemplated herein, or (iv) enter into any Contract that contains a non-compete that would be binding on Parent and its Subsidiaries (excluding the Company and its Subsidiaries) following the consummation of the Merger; (m) create or incur any Lien (other than a Permitted Lien) on any material tangible asset; (n) change the Company’s methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants; (o) make or change any material Tax election, change any annual Tax accounting period (except as would not be material), adopt or change any method of Tax accounting (except 41 #92864921v30
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lead to an Acquisition Proposal to return or destroy all such information in accordance with the applicable confidentiality agreements. (b) Notwithstanding anything contained in Section 6.04(a) to the contrary, if at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining Company Stockholder Approval), (i) the Board of Directors of the Company receives a bona fide written Acquisition Proposal made after the date hereof which has not resulted from a breach of this Section 6.04 that the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, is or is reasonably likely to lead to a Superior Proposal and (ii) the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, then the Board of Directors of the Company, may, subject to compliance with this Section 6.04(b), Section 6.04(c) and Section 6.04(e), (A) engage in negotiations or discussions with such Third Party and its Representatives, (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement, a copy of which shall be provided, promptly after its execution, to Parent for informational purposes; provided that the Company shall promptly provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent and (C) following receipt of a Superior Proposal after the date of this Agreement, make an Adverse Recommendation Change. Nothing contained herein shall prevent the Company or the Board of Directors of the Company from (x) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), or (y) making any legally required disclosure to stockholders with regard to the Transactions or an Acquisition Proposal provided that any Adverse Recommendation Change involving or relating to an Acquisition Proposal may only be made in accordance with the provisions of this Section 6.04(b), Section 6.04(c) and Section 6.04(e) and even if permitted by the foregoing, is subject to the rights of Parent set forth in this Agreement. For the avoidance of doubt, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act shall not be an Adverse Recommendation Change. (c) In addition to the requirements set forth in Section 6.04(b), the Board of Directors of the Company shall not take any of the actions referred to in clauses (A) through (C) of Section 6.04(b) unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action. The Company shall keep Parent promptly informed, on a reasonably current basis, after taking any such action of the status and material terms of any discussions and negotiations with the applicable Third Party with respect to the Acquisition Proposal. In addition, prior to obtaining the Company Stockholder Approval, the Company shall notify Parent promptly (but in no event later one Business Day) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that, to the knowledge of the Company, is considering making, or has made, an Acquisition 45 #92864921v30
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Proposal, which notice shall be provided in writing and shall identify the relevant Third Party, to the extent known, the material terms and conditions of, any such Acquisition Proposal. The Company shall keep Parent informed, on a reasonably prompt basis (but in no event more than one Business Day after actual receipt), of the status and material terms of any such Acquisition Proposal, (including any material changes thereto) and shall provide to Parent copies of all material correspondence and written materials sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters). (d) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval (and in no event after the obtaining the Company Stockholder Approval), the Board of Directors of the Company may effect an Adverse Recommendation Change involving or relating to a Company Intervening Event if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law; provided that (i) the Company shall (A) promptly notify Parent in writing of its intention to take such action (it being understood that such a notification shall not, itself, constitute an Adverse Recommendation Change) and (B) negotiate in good faith with Parent (if requested by Parent in writing) for five (5) Business Days following such notice regarding any revisions to the terms of this Agreement proposed by Parent, and (ii) the Board of Directors of the Company shall not effect any Adverse Recommendation Change involving or relating to a Company Intervening Event unless, after the five (5) Business Day period described in the foregoing clause (B), the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law. (e) Without limiting or affecting Section 6.04(a), Section 6.04(b) or Section 6.04(c), the Board of Directors of the Company shall not make an Adverse Recommendation Change involving or relating to a Superior Proposal unless (i) the Company promptly notifies Parent, in writing at least five (5) Business Days before taking such action, that the Company intends to take such action, which notice attaches the most current version of any proposed transaction agreement or a summary of all material terms of such Superior Proposal and the identity of the Third Party, (ii) if requested by Parent in writing, during such five (5) Business Day period, the Company have negotiated in good faith with Parent regarding any proposal by Parent to amend the terms of this Agreement in response to such Superior Proposal (and the Company shall have instructed its Affiliates and Representatives, including its outside legal counsel and financial advisor, to the extent appropriate, to have engaged in good faith negotiations with Parent and its Representatives) and (iii) after such five (5) Business Day period, the Board of Directors of the Company determines in good faith, taking into account any written proposal by Parent received during such period to amend the terms of this Agreement, that such Acquisition Proposal continues to constitute a Superior Proposal (it being understood and agreed that in the event of any amendment to the principal financial terms or other material terms of any such Superior Proposal, a new written notification from the Company consistent with that described in clause (i) of this Section 6.04(e) shall be required and a new notice period under clause (ii) of this Section 6.04(e) shall commence, during which notice period the Company shall be required to 46 #92864921v30
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comply with the requirements of this Section 6.04(e) anew, except that such new notice period shall be for two (2) Business Days (as opposed to five (5) Business Days)). (f) As used in this Agreement: (i) “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement. (ii) “Superior Proposal” means any bona fide, Acquisition Proposal (other than an Acquisition Proposal which has resulted from a breach of Section 6.04 (with all references to “15%” in the definition of Acquisition Proposal being deemed to be references to “50%” and clauses (ii)(2), (iii)(2) and (iv)(B)(2) being disregarded) on terms that the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, and taking into account all the terms and conditions of the Acquisition Proposal that the Board of Directors of the Company considers to be appropriate (including the identity of the Person making the Acquisition Proposal and the expected timing and likelihood of consummation, any governmental or other approval requirements, break-up fees, expense reimbursement provisions and conditions to consummation and availability of necessary financing), would result in a transaction (i) that, if consummated, is more favorable to the Company’s stockholders from a financial point of view than the Merger (taking into account any proposal by Parent to amend the terms of this Agreement agreed to be made in writing by Parent in response to such Acquisition Proposal), (ii) that is reasonably capable of being completed on the terms proposed, taking into account the identity of the Person making the Acquisition Proposal, any approval requirements and all other financial, regulatory, legal and other aspects of such Acquisition Proposal and (iii) for which financing, if a cash transaction (whether in whole or in part), is then fully committed or reasonably determined to be available by the Board of Directors of the Company. (iii) “Company Intervening Event” means any material event, change, effect, development or occurrence occurring or arising after the date of this Agreement that (i) was not known or reasonably foreseeable, or the material consequences of which were not known or reasonably foreseeable, in each case to the Board of Directors or executive officers of the Company as of or prior to the date of this Agreement, and (ii) does not relate to or involve any Acquisition Proposal; provided that in no event shall any (A) action taken by either party pursuant to the affirmative covenants set forth in Section 8.01 or the consequences of any such action constitute, and (B) event, change, effect development or occurrence that would fall within any of the exceptions to the definition of “Company Material Adverse Effect” be deemed to contribute to or otherwise be taken into account in determining whether there has been a Company Intervening Event. (g) Notwithstanding (i) any Adverse Recommendation Change, (ii) the making of any Acquisition Proposal or (iii) anything in this Agreement to the contrary, until termination of this 47 #92864921v30
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Agreement in no event may the Company or any of its Subsidiaries (A) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 6.04(b)), (B) except as required by Applicable Law, make, facilitate or provide information in connection with any SEC or other filings in connection with the transactions contemplated by any Acquisition Proposal or (C) seek any Consents from Governmental Authorities in connection with the transactions contemplated by any Acquisition Proposal. Section 6.05. Cooperation with Financing. (a) The Company shall use its commercially reasonable best efforts to, and shall cause its Subsidiaries and its and their respective Representatives to use their commercially reasonable best efforts to, on a timely basis, upon the reasonable request of Parent or any of its Subsidiaries, provide customary cooperation that is necessary and customary in connection with or any debt, equity, equity-linked or other financing of Parent or any of its Subsidiaries in connection with the Merger and the other Transactions (collectively, the “Financing”), including the following: (i) furnishing, or causing to be furnished, to Parent and the Financing Parties and their respective agents the financial information regarding the Company and its Subsidiaries (and any other Subsidiaries of the Company formed or acquired after the date of this Agreement) as may be reasonably requested by Parent that is of the type customarily included in (x) a bank information memorandum or (y) a prospectus supplement, offering memorandum or other offering document to be used in connection with the Financing, it being understood that in the case that the Financing includes an offering of securities on a registered basis such information shall include the information required by Regulation S-X and Regulation S-K under the Securities Act (but which, for the avoidance of doubt, shall not include financial statements or information required by Rules 3-09, 3-10 or 3-16 of Regulation S-X or Compensation Discussion and Analysis required by Regulation S-X Item 402(b), but would include customary disclosure of certain guarantor and non- guarantor information); provided that (I) the Company and its Subsidiaries shall only be obligated to deliver such information to the extent such information may be reasonably obtained from the books and records of the Company and its Subsidiaries and (II) the Company and its Subsidiaries shall not be obligated to furnish any of the Excluded Information; provided further that this clause (i) shall in no respect require the preparation of any financial statements not otherwise prepared by the Company in the ordinary course of business on the timeline prepared in the ordinary course; (ii) to the extent necessary for the consummation of the Financing, and customary for financings of such type, using reasonable best efforts to obtain and deliver the consent of the independent accountants of the Company and its Subsidiaries to use their audit reports with respect to the financial statements furnished pursuant to Section 6.05(a)(i) in any registration statement of Parent or any of its Subsidiaries filed with the SEC relating to such Financing, where such financial statements are included; 48 #92864921v30
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(iii) using reasonable best efforts to cause the Company’s and its Subsidiaries’ independent accountants to (A) participate in a manner consistent with their customary practice in a reasonable number of drafting sessions and accounting due diligence sessions in connection with such Financing and (B) provide customary comfort letters under AU Section 634 (or other applicable standard) for a public offering or a Rule 144A private placement of securities (including “negative assurance” comfort) with respect to financial information related to the Company and its Subsidiaries in connection with the Financing, to the extent such comfort letters are required to be delivered to the applicable underwriters, initial purchasers or placement agents in connection with any issuance of securities in a capital markets transaction comprising part of such Financing; (iv) using reasonable best efforts to assist Parent or any of its Subsidiaries in (including by providing information limited to the Company and its Subsidiaries required in connection with) its preparation of rating agency presentations, road show materials, bank information memoranda, projections, prospectuses, bank syndication materials, credit agreements, offering memoranda, private placement memoranda, definitive financing documents (including customary certificates, affidavits and title insurance related assistance) and similar or related documents to be prepared by Parent or its Subsidiaries in connection with such Financing, and which may incorporated by reference periodic and current reports filed by the Company with the SEC, in each case upon the reasonable request of Parent or any of its Subsidiaries but (A) solely to the extent reasonably necessary to consummate the Financing and customary of financings of such type and (B) limited to information available and reasonably ascertainable from the books and records of the Company and without any requirement of any further analysis or preparation by the Company; (v) using reasonable best efforts to cooperate with customary marketing efforts of Parent or any of its Subsidiaries, including using reasonable best efforts to cause its management team, with appropriate seniority and expertise, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, and sessions with rating agencies, in each case, upon reasonable advance notice and at mutually agreeable dates and times and using reasonable efforts to ensure that any syndication efforts benefit from any existing lending and investment banking relationships of the Company and its Subsidiaries; (vi) causing the taking of corporate actions (subject to the occurrence of the Closing Date) reasonably necessary to permit the completion of the Financing by persons that shall remain or will become officers or directors of the Surviving Corporation or any of the Subsidiaries of the Surviving Corporation as of the Effective Time; (vii) delivering to Parent, no later than three (3) Business Days prior to the Closing Date, (A) any materials and documentation about the Company and its Subsidiaries required under applicable “know your customer” and anti-money laundering laws (including the Uniting and Strengthening America by Providing Appropriate Tools 49 #92864921v30
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Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001), and (B) and certifications regarding beneficial ownership solely to the extent required by 31 C.F.R. § 1010.230, in each case, to the extent requested in writing by any Financing Parties no less than ten (10) Business Days prior to the Closing Date; (viii) cooperating with respect to the provision of guarantees as may be requested by Parent, including by executing and delivering definitive documents related thereto, to take effect following the Closing in connection with such Financing (but solely to the extent required thereby); and (ix) solely to the extent customarily required for financings of the type contemplated by the Financing, providing customary authorization letters to Parent’s or any of its Subsidiaries’ Financing Parties, authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries (only to the extent such authorization letters contain customary disclaimers for the Company, its Affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof); and (x) providing reasonable assistance in the preparation of pro forma information, risk factor disclosure and other disclosures required to consummate the financing, in each case upon the reasonable request of Parent or any of its Subsidiaries and as necessary or customary to consummate the Financing. (b) All non-public information regarding the Company or its Subsidiaries obtained by Parent or its Representatives, in each case pursuant to Section 6.05(a), shall be kept confidential in accordance with the Confidentiality Agreement; provided that such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, placement agents, dealer managers, solicitation agents, information agents and depositary or other agents (but not prospective investors in any debt securities offering) during syndication and marketing of the Financing that enter into confidentiality arrangements customary for Financing transactions of the same type as such financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. The Company hereby consents to the reasonable use of the Company’s and its Subsidiaries’ logos solely in connection with the Financing for the Merger and the other Transactions; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Affiliates or the reputation or goodwill of the Company or its Subsidiaries. (c) In connection with this Section 6.05, (i) neither the Company nor any of its Subsidiaries shall be required to pay any commitment fee or other fee or payment, incur any liability or expenses or permit any Lien to be placed on any of their respective assets, in each case, prior to the Closing Date and the consummation of the Closing in connection with any Financing to be obtained by Parent or its Subsidiaries in connection with the Transactions, 50 #92864921v30
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(ii) neither the Company nor any of its Subsidiaries or any of their respective directors or officers shall be obligated to execute any agreement, certificate, document, letter, registration statement or instrument with respect to such Financing that would be effective prior to the Closing (other than customary authorization letters, but solely to the extent referred to in clause (a)(ix) above), (iii) neither the Company nor any of its Subsidiaries or any of their respective Representatives shall be required to take or cause to be taken any action in respect of the Financing that: (1) would cause a breach of this Agreement by the Company or any of its Subsidiaries or cause any condition in Article 9 to not be satisfied on a timely basis; (2) would (I) conflict with (A) the Company’s or any of its Subsidiary’s organizational documents or any Applicable Law or (B) obligations of confidentiality from a third party (not created in contemplation hereof) binding on the Company or its Subsidiaries or (II) result in the contravention of, or violation of breach of, or default under, any contract to which the Company or any of its Subsidiaries is a party; (3) would require providing access to or disclosing information that would (in the good faith determination of the Company) jeopardize any attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company shall use reasonable efforts to allow for such access or disclosure to the maximum extent that does not result in a waiver of attorney-client privilege); (4) would require its legal counsel to provide any legal opinions; (5) would require the Company or its Subsidiaries to prepare any projections; (6) would require the Company to issue any bank information memoranda, lender presentations, offering memoranda, or similar documents including disclosure and financial statements (1) that reflects the Company or its Subsidiaries (other than, after the Closing, the Surviving Corporation) as the obligor(s) or (2) in the name of Company, its Subsidiaries or the Surviving Corporation; (7) would require the Company to take any action to the extent, in the good faith determination of the Company, such action would (A) materially or unreasonably interfere with the business or operations of the Company or its Subsidiaries or (B) cause competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated; 51 #92864921v30
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(8) would subject any of the Company’s or its Subsidiaries’ respective directors, managers, officers or employees to any actual or potential personal liability; (9) would cause the directors and managers of the Company or its Subsidiaries to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained unless Parent shall have determined that such directors and managers are to remain as directors and managers of the Surviving Corporation on and after the Closing and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing; provided that the foregoing shall not limit obligations with respect to the delivery of authorization letters as contemplated by Section 6.05(a)(ix); (10) waive or amend any terms of this Agreement or any other Contract to which the Company or its Subsidiaries is a party; or (11) take any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with any commitment letters or definitive documents related to the Financing, the Financing or any information utilized in connection therewith (in each case except following the Closing). (d) The Company, its Subsidiaries and their respective Representatives shall be indemnified and held harmless by Parent and its Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Financing and any other financing (including the use or provision of any information prepared or provided by the Company or any of its Subsidiaries or any of their respective Representatives), in each case to the fullest extent permitted by Law and with appropriate contribution to the extent such indemnification is not available, other than to the extent any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties are the result of bad faith or intentional willful misconduct that is material by the Company, its Subsidiaries or their respective Representatives. Parent shall promptly, upon written request by the Company, reimburse the Company or any of its Subsidiaries for all reasonable and documented out-of-pocket costs or expenses (including reasonable attorney’s fees) actually incurred by each such Person in connection with the cooperation provided under this Section 6.05, or such Financing, whether or not the Merger is consummated or this Agreement is terminated (and the foregoing obligations shall survive termination of this Agreement). (e) Notwithstanding anything to the contrary set forth herein, the Company and its Subsidiaries shall be deemed to have complied with their obligations under this Section 6.05 for all purposes of this Agreement unless the Financing actually sought by the Parent has not been obtained primarily as a result of the Company’s or any of its Subsidiaries’ intentional and material breach of its obligations under this Section 6.05. 52 #92864921v30
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certificate of incorporation and bylaws in effect on the date hereof or any indemnification agreements in effect on the date hereof. If any Indemnified Person is made party to any claim, action, suit, proceeding or investigation arising out of or relating to matters that would be indemnifiable pursuant to the immediately preceding sentence, Parent shall, and shall cause the Surviving Corporation to, advance fees, costs and expenses (including attorneys’ fees and disbursements) as incurred by such Indemnified Person in connection with and prior to the final disposition of such claim, action, suit, proceeding or investigation; provided, that, such Indemnified Person to whom expenses are advanced undertakes to Parent to repay such advances if it is ultimately determined by final non-appealable order that such Indemnified Person is not entitled to indemnification. (b) For six years after the Effective Time, Parent shall cause to be maintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation) regarding elimination of liability of directors, indemnification of officers, directors, employees, fiduciaries and agents and advancement of fees, costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement. (c) Prior to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), which D&O Insurance shall (i) be for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time, (ii) be from an insurance carrier with a substantially comparable credit rating as the Company’s current insurance carrier with respect to D&O Insurance and (iii) have terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against an Indemnified Person by reason of his or her having served in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby). If the Company or the Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall continue to maintain in effect, for a period of at least six years from and after the Effective Time, the D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with a substantially comparable credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as of the date hereof, or the Surviving Corporation shall purchase from the Company’s current insurance carrier or from an insurance carrier with a substantially comparable credit rating as the Company’s current insurance carrier with respect to D&O Insurance comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are no less favorable than as provided in the Company’s existing policies as of the date hereof. Notwithstanding the foregoing, in no event shall Parent or 55 #92864921v30
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cause each Continuing Employee to become eligible to participate in Parent’s employee benefit plans on the same basis as a similarly situated employee of Parent unless otherwise prohibited by any employee benefit plan or insurance contract of Parent, the Company or any their respective Subsidiaries; provided, however that to the extent that such eligibility would be prohibited under any employee benefit plans or insurance contract of Parent, the Company or any of their respective Subsidiaries, Parent shall use commercially reasonable efforts to amend or otherwise allow such eligibility under such plan. (c) In addition, and without limiting the generality of the foregoing, each Continuing Employee shall be immediately eligible to participate, without any waiting time (subject to meeting any service-based waiting time after giving effect to the provisions of Section 7.05(e)), in any and all plans of Parent, the Surviving Corporation or their respective Affiliates (“Surviving Corporation Plans”) to the extent coverage under any such plan replaces coverage under a comparable benefit plan in which such Continuing Employee participates immediately prior to the Effective Time. (d) With respect to all Surviving Corporation Plans, including any “employee benefit plan”, as defined in Section 3(3) of ERISA, maintained by Parent or any of its respective Subsidiaries (including any vacation, paid time-off and severance plans), for all purposes (but not for benefit accrual under any defined benefit plan or vesting under any equity compensation plan), including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies, Parent shall cause each Continuing Employee’s service with the Company or any Company Subsidiaries (as well as service with any predecessor employer of the Company or any such Company Subsidiary, to the extent service with the predecessor employer is recognized by the Company or such Company Subsidiary) to be treated as service with Parent or any of their respective Subsidiaries, unless prohibited by any employee benefit plan or insurance contract of Parent, the Company or any their respective Subsidiaries; provided, however that to the extent that such recognition would be prohibited under any employee benefit plans of Parent, the Company or any of their respective Subsidiaries, Parent shall use commercially reasonable efforts to amend or otherwise allow such recognition under such plan and provided, further, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits for the same period of service. (e) With respect to any welfare plan maintained by Parent or any of its Subsidiaries in which any Continuing Employee is eligible to participate after the Effective Time, Parent shall, and shall cause the Surviving Corporation to (to the extent permitted under such welfare plan and Applicable Law) use commercially reasonable efforts to, (i) waive all limitations as to preexisting conditions and exclusions and waiting periods and actively-at-work requirements with respect to participation and coverage requirements applicable to such employees and their eligible dependents and beneficiaries, to the extent such limitations were waived, satisfied or did not apply to such employees or eligible dependents or beneficiaries under the corresponding welfare Company Plan in which such employees participated immediately prior to the Effective Time and (ii) provide Continuing Employees and their eligible dependents and beneficiaries with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any 57 #92864921v30
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submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, Consents, registrations, permits, authorizations, Orders, waivers, non-objections and other confirmations required to be obtained from (A) any Governmental Authority that are necessary, proper or advisable to consummate the Transactions including (x) under the HSR Act and (y) those listed on Schedule 8.01 to this Agreement (the “Requisite Regulatory Approvals”) and (B) any other Third Party that are necessary, proper or advisable to consummate the Transactions. Parent acknowledges and agrees that its obligation pursuant to this Section 8.01 includes divestitures, hold separate arrangements, the termination, assignment, novation or modification of contracts or other business relationships or business areas, the acceptance of restrictions on business operations, the entry into other commitments (including those set forth on Section 8.01(x) of the Company Disclosure Schedule) and limitations, and litigation, including with Governmental Authorities, to obtain the approvals, Consents, registrations, permits, authorizations, Orders, waivers, non-objections and other confirmations required to be obtained from any Governmental Authority to consummate the transactions contemplated hereby; provided, that, if requested by Parent, the Company and any of its Subsidiaries will become subject to, consent to, or offer or agree to, or otherwise take any of the foregoing actions so long as such action is only binding on the Company or such Subsidiary after the Closing (in the event that the Closing occurs); provided further that, unless requested by Parent pursuant to the immediately foregoing proviso, neither the Company nor any of its Subsidiaries will, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, or otherwise take any of the foregoing actions if the taking of any or all such actions would, individually or in the aggregate, result in a Materially Burdensome Regulatory Condition (as defined below). Notwithstanding the foregoing or any other provision of this Agreement, Parent shall not be required to (x) take or commit to take any action that would reasonably be expected to result in changes to the business of the Company or any of its Subsidiaries or of Parent or any of its Subsidiaries that, if in effect at the start of fiscal year 2019, would have resulted in the reduction of the revenues of the Company, its Subsidiaries, Parent and/or its Subsidiaries, by an amount in excess of $25,000,000 in the aggregate, in the 2019 fiscal year or (y) take or commit to take any actions that would result in incremental payments, costs or expenditures (including reasonable counsel and advisor fees) by the Company, its Subsidiaries, Parent and/or its Subsidiaries, on or after the date hereof (but excluding any payments, costs or expenditures otherwise incurred in connection with this Agreement or the consummation of the Transaction), in excess of $12,500,000 in the aggregate in any fiscal year (a “Materially Burdensome Regulatory Condition”) (it being understood and agreed that Parent shall be obligated to take any such actions (A) that result in changes to the business of the Company or any of its Subsidiaries or of Parent or its Subsidiaries that, if in effect at the start of fiscal year 2019, would have resulted in the reduction of the revenues of the Company, its Subsidiaries, Parent and/or its Subsidiaries, by an amount not in excess of $25,000,000 in the aggregate, in the 2019 fiscal year and (B) that would not result in incremental payments, costs or expenditures (including reasonable counsel and advisor fees) to the Company, its Subsidiaries, Parent and/or its Subsidiaries, on or after the date hereof (but excluding any payments, costs or expenditures otherwise incurred in connection with this Agreement or the consummation of the Transaction), in excess of $12,500,000 in the aggregate in any fiscal year. 59 #92864921v30
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(b) Parent and the Company shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to Applicable Laws relating to the exchange of information and confidentiality restrictions, all the information relating to Parent and the Company, as the case may be, and any of their respective Subsidiaries, which appears in any filing made with, or written materials submitted to, any Third Party or any Governmental Authority in connection with Section 8.01(a). In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, Consents, Orders, approvals, waivers, non-objections and authorizations (including the Requisite Regulatory Approvals) of all Third Parties and Governmental Authorities necessary or advisable to consummate the Transactions and each party will keep the other apprised of the status of matters relating to consummation of the Transactions, and each party shall consult with the other in advance of any meeting or conference with any Governmental Authority in connection with the Transactions and, to the extent permitted by such Governmental Authority, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences, in each case subject to Applicable Law; and provided that each party shall promptly advise the other party with respect to substantive matters that are addressed in any meeting or conference with any Governmental Authority which the other party does not attend or participate in, to the extent permitted by such Governmental Authority and Applicable Law. (c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) as promptly as practicable after the date hereof. Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Authority in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the Transactions, except with the prior written consent of the other parties hereto. Subject to the final sentence of Section 8.01(a), Parent shall (A) offer to take (and if such offer is accepted, commit to take) with respect to itself and the Company all actions necessary to avoid or eliminate impediments under any antitrust, competition, or trade regulation law that may be asserted by the FTC, the Antitrust Division, any State Attorney General or any other Governmental Authority with respect to the Merger and the other Transactions so as to enable the consummation thereof as promptly as reasonably practicable. Notwithstanding the foregoing, at the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries (but, absent such request, the Company shall not take any such action), provided that any such action shall be conditioned upon the consummation of the Merger and the other Transactions. (d) Each party shall (1) promptly notify the other parties of any written communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other 60 #92864921v30
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(b) no restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction preventing the consummation of the Merger shall have taken effect after the date hereof and shall still be in effect; and (c) all Requisite Regulatory Approvals shall have been obtained and shall remain in full force and effect (or, in the case of any Requisite Regulatory Approvals that are statutory waiting periods, shall have expired or been terminated). Section 9.02. Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Effective Time, of each of the following conditions: (a) (i) the representations and warranties of the Company contained in Section 4.05(a), the first sentence of Section 4.06(b) and Section 4.10(b) shall be true and correct at and as of the Effective Time as if made at and as of such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such time), with only such exceptions in the case of Section 4.05(a) as would not reasonably be expected to have a De Minimis Effect, (ii) the representations and warranties of the Company contained in the first sentence of Section 4.01, Section 4.02, Section 4.04, Section 4.06(b), Section 4.20, Section 4.21 and Section 4.22 shall be true and correct in all material respects at and as of the Effective Time as if made at and as of the Effective Time (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iii) the other representations and warranties of the Company contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall be true and correct at and as of the Effective Time as if made at and as of such time (other than any such representations and warranty that by its terms addresses matters only as another specified time, which shall be true and correct only as of such time), with only such exceptions in the case of clause (iii) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company shall have performed in all material respects its obligations under this Agreement contemplated to be performed prior to the Effective Time; provided that the failure by the Company to perform its obligations set forth in Section 6.05 shall not be deemed to constitute a failure of the closing condition set forth in this Section 9.02(b); (c) since the date of this Agreement, there shall have not occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and (d) the Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of the Effective Time certifying that the conditions specified in Section 9.02(a), Section 9.02(b), and Section 9.02(c) have been satisfied. 64 #92864921v30
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11.04, neither Parent nor the Company shall be released from any liabilities or damages arising out of (i) Fraud or (ii) the willful breach of any provision set forth in this Agreement. The provisions of this Section 10.02 and Sections 11.04, 11.07, 11.08 and 11.09 shall survive any termination hereof pursuant to Section 10.01. ARTICLE 11 MISCELLANEOUS Section 11.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission, so long as a receipt of such e-mail is requested and received) and shall be given, if to Parent or Merger Sub, to: INTL FCStone Inc. 0000 Xxxxxx Xxxxx Xxxxxxx - Xxxxx 000 Xxxx Xxx Xxxxxx, XX 00000 Attention: Xxxxx X. Xxxxx, Counsel and Corporate Secretary E-mail: Xxxxx.Xxxxx@xxxxxxxxxxx.xxx with a copy to: DLA Piper LLP (US) 000 Xxxx Xxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx Xxxx E-mail: xxxxxx.xxxx@xx.xxxxxxxx.xxx if to the Company, to: GAIN Capital Holdings, Inc. Bedminster One 000 Xxxxx 000/000 Xxxxxxxxxx, Xxx Xxxxxx 00000 Attention: Diego Rotsztain E-mail: XXxxxxxxxx@XXXXXxxxxxx.xxx with a copy to: Xxxxx Xxxx & Xxxxxxxx LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx E-mail: xxxxxxx.xxxxxxx@xxxxxxxxx.xxx 67 #92864921v30
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any bond or proof of actual damages in connection with any such remedy. If, prior to the End Date, any party brings an action to enforce specifically the performance of the terms and provisions of this Agreement by another party, the End Date shall automatically be extended by (a) the amount of time during which such action is pending, plus 20 Business Days, or (b) such other time period established by the court presiding over such action. [The remainder of this page has been intentionally left blank; the next page is the signature page.] 73 #92864921v30
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date set forth on the cover page of this Agreement. GAIN CAPITAL HOLDINGS, INC. By: /s/ Diego Rotsztain Name: Diego Rotsztian Title: EVP, General Counsel and Secretary INTL FCSTONE INC. By: /s/ Xxxx X. X’Xxxxxx Name: Xxxx X. X’Xxxxxx Title: President GOLF MERGER SUB I INC. By: /s/ Xxxx X. X’Xxxxxx Name: Xxxx X. X’Xxxxxx Title: President [Signature Page to Agreement and Plan of Merger] #92864921v30