FORM OF NON-TENDER AND SUPPORT AGREEMENT
Exhibit (e) (6)
FORM
OF
NON-TENDER AND SUPPORT AGREEMENT
NON-TENDER AND SUPPORT AGREEMENT
THIS NON-TENDER AND SUPPORT AGREEMENT (this “Agreement”) dated July 22, 2009, is by
and among BEN HOLDINGS, INC., a Delaware Corporation (“Parent”), BEN MERGER SUB, INC., a
Florida corporation and a wholly owned Subsidiary of Parent
(“Merger Sub”) and
[ ] (the “Shareholder”).
WHEREAS, Parent, Merger Sub and Bankrate, Inc., a Florida corporation (the “Company”)
propose to enter into an Agreement and Plan of Merger, dated as of or after the date hereof (the
“Merger Agreement”), which provides, among other things, for Merger Sub to conduct a tender
offer for all of the issued and outstanding shares of Common Stock (as defined below) of the
Company (the “Offer”) and the merger of Merger Sub with and into the Company, with the
Company continuing as the surviving corporation (the “Merger”), upon the terms and subject
to the conditions set forth in the Merger Agreement (capitalized terms used herein without
definition shall have the respective meanings specified in the Merger Agreement);
WHEREAS, the Shareholder, Parent and Merger Sub are executing this agreement prior
to the execution of the Merger Agreement;
WHEREAS, the Shareholder owns shares of common stock, par value $0.01 per share, of the
Company (the “Common Stock”, which for the avoidance of doubt, shall include Company
Restricted Shares) and shares subject to Company Stock Options (such shares of Common Stock,
together with any other shares of capital stock of the Company acquired (whether beneficially or of
record) by the Shareholder after the date hereof and prior to the earlier of the Effective Time and
the termination of all of the Shareholder’s obligations under this Agreement, including any shares
of Common Stock acquired by means of purchase, dividend or distribution, or issued upon the
exercise of any Company Stock Options or warrants or the conversion of any convertible securities
or otherwise, being collectively referred to herein as the “Securities”);
WHEREAS, the Shareholder has agreed to accept as consideration for certain of his Securities,
securities of Parent (and/or an Affiliate of Parent) in accordance with the terms and conditions
set forth on Annex A attached hereto, which is subject to the non-exclusive safe harbor
(the “Safe Harbor”) of Rule 14d-10(a)(2) of the Exchange Act (the “Best Price
Rule”);
WHEREAS, in addition to complying with the Safe Harbor, in order to ensure that the
Shareholder’s agreement to accept securities of Parent (and/or an Affiliate of Parent) as
consideration for certain of his Securities in accordance with the terms and conditions set forth
on Annex A attached hereto will not cause the Offer to fail to comply with the Best Price
Rule, Parent has required the Shareholder to agree (a) not to tender his Securities into the Offer
and (b) not to have any of his Securities cashed out at the Acceptance Time, other than in
accordance with the terms and conditions of definitive documents relating to the treatment of such
Shareholder’s Securities in accordance with the terms and conditions of Annex A;
WHEREAS, receipt of shareholder approval is a condition to the consummation of the Merger; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter into the Merger
Agreement and as an inducement and in consideration therefor, the Shareholder has agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
NON-TENDER OF THE SECURITIES
NON-TENDER OF THE SECURITIES
Section 1.1 Non-Tender of the Securities. The Shareholder hereby agrees that he
shall not, directly or indirectly, tender any of his Securities into the Offer, including any
“subsequent offering period” in accordance with
Rule 14d-11 promulgated under the Exchange Act, in
any manner, or enter into any agreement, transaction or arrangement that results in such Securities
being tendered into the Offer, including any “subsequent offering period” in accordance with Rule
14d-11 promulgated under the Exchange Act.
Section 1.2 Rule 14e-5. The Shareholder covenants to comply in all respects
with Rule 14e-5 promulgated under the Exchange Act (notwithstanding whether it would be subject to
the terms of such Rule pursuant to its terms).
Section 1.3 Non-Cash Out of Company Stock Options or Company Restricted Shares.
Notwithstanding any right the Shareholder may have under the Company Stock Plans, or any treatment
afforded any other holder of Company Stock Options or Company Restricted Shares triggered by the
Acceptance Time, the Shareholder acknowledges and agrees that such Securities shall not vest and
shall not be cashed out other than in accordance with the terms and conditions of the definitive
documentation relating to the treatment of such Shareholder’s Securities in accordance with the
terms and conditions of Annex A.
ARTICLE II
VOTING; GRANT AND APPOINTMENT OF PROXY
VOTING; GRANT AND APPOINTMENT OF PROXY
Section 2.1 Voting. From and after the date hereof until the earlier of (a) the
Acceptance Time and (b) the termination of the Merger Agreement pursuant to and in compliance with
the terms therein, the Shareholder irrevocably and unconditionally hereby agrees that at any
meeting (whether annual or special and each adjourned or postponed meeting) of the Company’s
shareholders, however called, or in connection with any written consent of the Company’s
shareholders, the Shareholder will (i) appear at such meeting or otherwise cause its Covered
Securities (as defined below) to be counted as present thereat for purposes of calculating a quorum
and (ii) vote or cause to be voted (including by proxy or written consent, if applicable) all of
the Shareholder’s Securities beneficially owned or controlled by the Shareholder as of the relevant
time, other than any of such Shareholder’s Company Stock Options or Company Restricted Stock for
which the Shareholder does not have the right to vote under the Company Stock Plans, (the
“Covered Securities”), without regard to any Adverse Recommendation Change,
2
(a) for approval and adoption of the Merger Agreement and the transactions
contemplated by the Merger Agreement,
(b) against any Alternative Proposal, without regard to the terms of such Alternative
Proposal, or any other transaction, proposal, agreement or action made in opposition to adoption of
the Merger Agreement or in competition or inconsistent with the Merger and the other transactions
contemplated by the Merger Agreement,
(c) against any other action, agreement or transaction, that is intended, that could
reasonably be expected, or the effect of which could reasonably be expected, to materially impede,
interfere with, delay, postpone, discourage or adversely affect the Offer, the Merger or any of the
other transactions contemplated by the Merger Agreement or this Agreement or the performance by the
Shareholder of his obligations under this Agreement, including, without limitation: (i) any
extraordinary corporate transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries (other than the Offer and the Merger); (ii) a sale, lease
or transfer of a material amount of assets of the Company or any of its Subsidiaries or a
reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) an
election of new members to the board of directors of the Company, other than nominees to the board
of directors of the Company who are serving as directors of the Company on the date of this
Agreement or as otherwise provided in the Merger Agreement; (iv) any material change in the present
capitalization or dividend policy of the Company or any amendment or other change to the Company’s
articles of incorporation or bylaws, except if approved in writing by Parent; or (v) any other
material change in the Company’s corporate structure or business, except if approved in writing by
Parent,
(d) against any action, proposal, transaction or agreement that would reasonably be expected
to result in a breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company contained in the Merger Agreement, or of the Shareholder
contained in this Agreement, and
(e) in favor of any other matter necessary to the consummation of the transactions
contemplated by the Merger Agreement, including the Offer.
Section 2.2 Grant of Irrevocable Proxy; Appointment of Proxy.
2.2.1 From and after the Acceptance Time until the earlier of (a) the consummation of the
Merger and (b) the termination of the Merger Agreement pursuant to and in compliance with the terms
therein (such earliest time, the “Expiration Time”), the Shareholder hereby irrevocably and
unconditionally grants to, and appoints, Parent and any designee thereof, the Shareholder’s proxy
and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the
Shareholder, to vote or cause to be voted (including by proxy or written consent, if applicable)
the Covered Securities, without regard to any Adverse Recommendation Change,
(a) for approval and adoption of the Merger Agreement and the transactions
contemplated by the Merger Agreement,
3
(b) against any Alternative Proposal, without regard to the terms of such Alternative
Proposal, or any other transaction, proposal, agreement or action made in opposition to adoption of
the Merger Agreement or in competition or inconsistent with the Merger and the other transactions
contemplated by the Merger Agreement,
(c) against any other action, agreement or transaction, that is intended, that could
reasonably be expected, or the effect of which could reasonably be expected, to materially impede,
interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement or this Agreement or the performance by the
Shareholder of his obligations under this Agreement, including, without limitation: (i) any
extraordinary corporate transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer
of a material amount of assets of the Company or any of its Subsidiaries or a reorganization,
recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) an election of new
members to the board of directors of the Company, other than nominees to the board of directors of
the Company who are serving as directors of the Company on the date of this Agreement or as
otherwise provided in the Merger Agreement; (iv) any material change in the present capitalization
or dividend policy of the Company or any amendment or other change to the Company’s articles of
incorporation or bylaws, except if approved in writing by Parent; or (v) any other material change
in the Company’s corporate structure or business, except if approved in writing by Parent,
(d) against any action, proposal, transaction or agreement that would reasonably be expected
to result in a breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company contained in the Merger Agreement, or of the Shareholder
contained in this Agreement, and
(e) in favor of any other matter necessary to the consummation of the transactions
contemplated by the Merger Agreement.
2.2.2 The Shareholder hereby represents that any proxies heretofore given in respect of the
Shareholder’s Securities, if any, are revocable, and hereby revokes such proxies.
2.2.3 The Shareholder hereby affirms that the irrevocable proxy set forth in this Section
2.2 is given in connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of the Shareholder under this
Agreement. The Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and, except as set forth in this Section 2.2, is intended to be irrevocable. If
for any reason the proxy granted herein is not irrevocable, then the Shareholder agrees to vote the
Covered Securities in accordance with Section 2.2.1(a) through Section 2.2.1(e)
above as instructed by Parent in writing. The parties agree that the foregoing is a voting
agreement.
Section 2.3 Restrictions on Transfers. Except as provided for in the term sheet
attached hereto as Annex A or as pursuant to the Merger Agreement, the Shareholder hereby
agrees that, from the date hereof until the consummation of the Merger, he shall not, directly or
indirectly, (a) sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber,
hypothecate or similarly dispose of (by merger, by testamentary disposition, by operation of law
4
or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, assignment, pledge, Lien,
hypothecation or similar disposition of (by merger, by testamentary disposition, by operation of
law or otherwise), any Securities, except in connection with cashless exercises or similar
transactions (including, in respect of tax withholding) pursuant to the exercise of the Company
Stock Options or settlement of other awards or obligations outstanding as of the date hereof, (b)
deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant
any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, or
(c) agree (whether or not in writing) to take any of the actions referred to in the foregoing
clause (a) or (b).
Section 2.4 Inconsistent Agreements. The Shareholder hereby covenants and agrees
that, except for this Agreement, the Shareholder (a) has not entered into, and shall not enter into
at any time while this Agreement remains in effect, any voting agreement or voting trust with
respect to the Covered Securities and (b) has not granted, and shall not grant at any time while
this Agreement remains in effect, a proxy, consent or power of attorney with respect to the Covered
Securities.
ARTICLE III
NO SOLICITATION
NO SOLICITATION
Section 3.1 Restricted Activities. Prior to the Expiration Time, the Shareholder
in his capacity as a shareholder of the Company shall not, and shall use his reasonable best
efforts to cause his officers, directors, employees, agents, advisors and other representatives (in
each case, acting in their capacity as such to the Shareholder, in his capacity as a shareholder,
(the “Shareholder’s Representatives”) not to, directly or indirectly: (a) initiate,
solicit, propose, encourage or knowingly facilitate (including by providing information) any
inquiries, proposals or offers with respect to, or the making or completion of, an Alternative
Proposal or offer that would reasonably be expected to lead to an Alternative Proposal, (b) engage,
continue or participate in any negotiations concerning, or provide or cause to be provided any
non-public information or data relating to the Company or any of its Subsidiaries in connection
with, or have any discussions (other than to state that they are not permitted to have discussions)
with any person relating to, an actual or proposed Alternative Proposal or offer that would
reasonably be expected to lead to an Alternative Proposal, or otherwise knowingly facilitate any
effort or attempt to make or implement an Alternative Proposal or offer that would reasonably be
expected to lead to an Alternative Proposal, (c) to the extent permitted by applicable Law, grant
any waiver, amendment or release under any standstill or confidentiality agreement or Takeover
Statutes, or otherwise knowingly facilitate any effort or attempt by any person to make an
Alternative Proposal (including providing consent or authorization to make an Alternative Proposal
to any officer or employee of the Company or to the Board (or any member thereof) pursuant to any
Existing Confidentiality Agreement), (d) approve, endorse or recommend, or propose to approve,
endorse or recommend, or execute or enter into, any letter of intent, agreement in principle,
merger agreement, acquisition agreement, option agreement or other similar agreement relating to
any Alternative Proposal or offer that would reasonably be expected to lead to an Alternative
Proposal, or (e) resolve to propose or agree to do any of the foregoing (the activities specified
in clauses (a) through (e) being hereinafter referred to as the “Restricted Activities”);
provided, however, that if the Company is engaging in Restricted
5
Activities that the Shareholder reasonably believes are in compliance with the provisions of the
Merger Agreement, the Shareholder and the Shareholder’s Representatives may participate with the
Company in such Restricted Activities.
Section 3.2 Notification. The Shareholder, in his capacity as a shareholder of the
Company, shall and shall use his reasonable best efforts, in his capacity as a shareholder of the
Company, to cause the Shareholder’s Representatives to, immediately cease and cause to be
terminated any discussions or negotiations with any parties that may have been conducted heretofore
with respect to an Alternative Proposal. From and after the date hereof until the Expiration Time,
the Shareholder shall promptly advise Parent orally (and in any event within 48 hours) and
subsequently in writing of (x) any Alternative Proposal he receives in his capacity as a
shareholder of the Company, (y) any request he receives in his capacity as a shareholder of the
Company for non-public information relating to the Company or its Subsidiaries, other than requests
for information not reasonably expected to be related to an Alternative Proposal, and (z) any
inquiry or request for discussion or negotiation he receives in his capacity as a shareholder of
the Company regarding an Alternative Proposal, including in each case the identity of the person
making any such Alternative Proposal or indication or inquiry and the material terms of any such
Alternative Proposal or indication or inquiry (including, if applicable, copies of any written
requests, proposals or offers, including proposed agreements). The Shareholder, in his capacity as
a shareholder of the Company, shall keep Parent reasonably informed on a reasonably current basis
of the status and terms (including any material changes to the terms thereof) of any such
Alternative Proposal or indication or inquiry (including, if applicable, any revised copies of
written requests, proposals and offers) and the status of any such discussions or negotiations.
This Section 3.2 shall not apply to any Alternative Proposal received by the Company. The
Shareholder’s receipt, in his capacity as a shareholder of the Company, of any Alternative Proposal
shall not relieve the Shareholder from any of his obligations hereunder.
Section 3.3 Capacity. The Shareholder is signing this Agreement solely in the
Shareholder’s capacity as a shareholder of the Company and nothing contained herein shall in any
way limit or affect any actions taken by any Shareholder, or any trustee of any Shareholder, in his
capacity as an officer or director of the Company, and no action taken in any such capacity as an
officer or director shall be deemed to constitute a breach of this Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SHAREHOLDER
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SHAREHOLDER
Section 4.1 Representations and Warranties. The Shareholder represents and
warrants to Parent and Merger Sub as follows: (a) the Shareholder who is an individual has full
legal right and capacity to execute and deliver this Agreement, to perform the Shareholder’s
obligations hereunder and to consummate the transactions contemplated hereby, (b) this Agreement
has been duly executed and delivered by the Shareholder and the execution, delivery and performance
of this Agreement by the Shareholder and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the Shareholder and no other
actions or proceedings on the part of the Shareholder are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby, (c) assuming this Agreement constitutes the
valid and binding agreement of Parent and Merger Sub, this Agreement
6
constitutes the valid and binding agreement of the Shareholder, enforceable against the Shareholder
in accordance with its terms, (d) the execution and delivery of this Agreement by the Shareholder
does not, and the consummation of the transactions contemplated hereby and the compliance with the
provisions hereof will not, conflict with or violate any Law or agreement binding upon the
Shareholder or the Shareholder’s Securities, nor require any authorization, consent or approval of,
or filing with, any Governmental Entity, except for filings with the Securities and Exchange
Commission by the Shareholder, and (e) except for such transfer restrictions of general
applicability as may be provided under the Securities Act of 1933, as amended, and the “blue sky”
laws of the various states of the United States, the Shareholder owns, beneficially and of record,
or controls all of his Securities (and any additional Securities acquired after the date hereof)
free and clear of any proxy, voting restriction, adverse claim or other Lien (other than any
restrictions created by this Agreement) and has sole voting power with respect to the Covered
Securities and sole power of disposition with respect to all of the Shareholder’s Securities, other
than any of such Shareholder’s Company Stock Options or Company Restricted Stock which the
Shareholder does not have the right to dispose of under the Company Stock Plans, with no
restrictions on the Shareholder’s rights of voting or disposition pertaining thereto and no person
other than the Shareholder has any right to direct or approve the voting or disposition of any of
the Shareholder’s Securities.
Section 4.2 Covenants. The Shareholder hereby:
(a) agrees, prior to the Expiration Time, not to take any action that would make any
representation or warranty of the Shareholder contained herein untrue or incorrect or have or would
reasonably be expected to have the effect of preventing, impeding or interfering with or adversely
affecting the performance by the Shareholder of its obligations under this Agreement;
(b) irrevocably waives, and agrees not to exercise, any rights of appraisal or rights of
dissent from the Merger that the Shareholder may have with respect to the Shareholder’s Securities;
(c) agrees to promptly notify the Company, Parent and Merger Sub of the number of any new
Securities acquired by the Shareholder after the date hereof and prior to the Expiration Time. Any
such Securities shall be subject to the terms of this Agreement as though owned by the Shareholder
on the date hereof;
(d) agrees to permit Parent and Merger Sub to publish and disclose in the Offer Documents and,
if approval of the shareholders of the Company is required under applicable law, the Company Proxy
Statement, the Shareholder’s identity and ownership of Common Stock and the nature of the
Shareholder’s commitments, arrangements and understandings under this Agreement;
(e) shall and does authorize the Company or its counsel to, notify the Company’s transfer
agent that there is a stop transfer order with respect to all of the Securities (and that this
Agreement places limits on the voting and transfer of such shares);
7
(f) agrees that, upon request of Parent or Merger Sub, the Shareholder shall execute and
deliver any additional documents and take such further actions as may reasonably be deemed by
Parent or Merger Sub to be necessary or desirable to carry out the provisions of this Agreement;
and
(g) commits, at the Effective Time, to invest in securities of Parent (and/or an Affiliate of
Parent), in accordance with the terms and conditions set forth on
Annex A attached hereto
and pursuant to definitive documents as described in Annex A, the terms of which are
consistent with such terms and conditions, to be executed by Shareholder and Parent (and/or an
Affiliate of Parent) prior to the Acceptance Time, an amount equal to
$[ ] (the “Rollover
Amount”).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section 5.1 Representations and Warranties of Parent and Merger Sub. Each of
Parent and Merger Sub hereby, jointly and severally, represents and warrants to the Shareholder as
follows: (a) this Agreement has been duly and validly authorized by each of Parent’s and Merger
Sub’s respective board of directors, (b) this Agreement has been duly executed and delivered by a
duly authorized officer or other representative of each of Parent and Merger Sub, (c) assuming this
Agreement constitutes a valid and binding agreement of the Shareholder and Parent or Merger Sub, as
applicable, this Agreement constitutes a valid and binding agreement of Merger Sub or Parent, as
applicable, enforceable against Merger Sub or Parent, as applicable, in accordance with its terms
and (d) the execution and delivery of this Agreement by Parent and Merger Sub does not, and the
consummation of the transactions contemplated hereby and the compliance with the provisions hereof
will not, conflict with or violate any Law or agreement or organizational documents binding upon
Parent or Merger Sub, nor require any authorization, consent or approval of, or filing with, any
Governmental Entity, except for the Parent Approvals.
ARTICLE VI
TERMINATION
TERMINATION
This Agreement shall terminate and be of no further force or effect (i) upon the earlier to
occur of (A) the Closing and (B) the date of termination of the Merger Agreement in accordance with
its terms or (ii) within five (5) calendar days from the date of this Agreement should the Merger
Agreement not be executed by all of the parties thereto. Notwithstanding the preceding sentence,
this Article VI and Article VII shall survive any termination of this Agreement.
Nothing in this Article VI shall relieve or otherwise limit any party of liability for
willful breach of this Agreement.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.1 Expenses. Except as otherwise may be agreed in writing, all costs,
fees and expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring or required to incur such costs, fees and expenses.
8
Section 7.2 Notices. Any notice required to be given hereunder shall be sufficient
if in writing, and sent by facsimile transmission (provided that any notice received by
facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m.
(addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local
time) on the next Business Day), by reliable overnight delivery service (with proof of service),
hand delivery or certified or registered mail (return receipt requested and first-class postage
prepaid), addressed as follows:
To Parent or Merger Sub:
c/o BEN Holdings, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with copies to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
Attention: Xxxx X. Xxxxx
Xxx Xxxxxx
Xxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
Attention: Xxxx X. Xxxxx
Xxx Xxxxxx
Xxxxx X. Xxxxxxx
To the Shareholder:
with a copy to:
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxx
or to such other address as any party shall specify by written notice so given, and such notice
shall be deemed to have been delivered as of the date so telecommunicated, personally delivered or
mailed. Any party to this Agreement may notify any other party of any changes to the address or any
of the other details specified in this Section 7.2; provided, however that
such notification shall only be effective on the date specified in such notice or five (5) Business
Days after the notice is given, whichever is later. Rejection or other refusal to accept or the
inability to deliver because of changed address or facsimile of which no notice was given shall be
deemed to be receipt of the notice as of the date of such rejection, refusal or inability to
deliver.
9
Section 7.3 Amendments; Waivers. At any time prior to the Expiration Time, any
provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by the Shareholder, Parent and Merger Sub, or
in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding
the foregoing, no failure or delay by the Company or Parent in exercising any right hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise of any other right hereunder.
Section 7.4 Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of Law or otherwise) without the prior written consent of the other parties, except
that Merger Sub may assign, in its sole discretion, any of or all of its rights, interest and
obligations under this Agreement to Parent or to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Merger Sub of its obligations hereunder. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Parent shall cause Merger Sub, and any
assignee thereof, to perform its obligations under this Agreement and shall be responsible for any
failure of Merger Sub or such assignee to comply with any representation, warranty, covenant or
other provision of this Agreement.
Section 7.5 No Partnership, Agency, or Joint Venture. This Agreement is intended
to create, and creates, a contractual relationship and is not intended to create, and does not
create, any agency, partnership, joint venture or any like relationship between the parties hereto.
Section 7.6 Entire Agreement; Benefit. This Agreement (including the arrangements
pursuant to Annex A attached hereto) constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral, between the parties, or any of
them, with respect to the subject matter hereof and thereof. This Agreement is not intended to
grant and does not grant standing to any person other than the parties. The representations and
warranties set forth herein and the covenants set forth herein have been made solely for the
benefit of the parties to this Agreement and (a) may be intended not as statements of fact, but
rather as a way of allocating the risk to one of the parties if those statements prove to be
inaccurate and (b) may apply standards of materiality in a way that is different from what may be
viewed as material by shareholders of, or other investors in, the Company.
Section 7.7 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only
as broad as is enforceable.
Section 7.8 Governing Law. This Agreement, and all claims or causes of action
(whether at Law, in contract or in tort) that may be based upon, arise out of or relate to this
Agreement, or the negotiation, execution or performance hereof, shall be governed by and construed
in accordance with the Laws of the State of Delaware, without giving effect to any
10
choice or conflict of Law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State
of Delaware except matters relating to the fiduciary duties of the Board and internal corporate
affairs and the Company shall be governed by the laws of the State of Florida.
Section 7.9 Jurisdiction; Enforcement. Each of the parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any judgment in respect of
this Agreement and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of
Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware
Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal
court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any Action
or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to
the jurisdiction of the above named courts for any reason other than the failure to serve in
accordance with this Section 7.9, (b) any claim that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the
applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this
Agreement or the subject mater hereof may not be enforced in or by such courts. Each of the parties
hereto irrevocably consents to the service of process out of the Delaware Court of Chancery and any
state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery
declines to accept jurisdiction over a particular matter, any state or federal court within the
State of Delaware) in any such action or proceeding by the mailing of copies thereof by registered
mail, postage prepaid, to it its address set forth in Section 7.2 of this Agreement, such
service of process to be effective upon acknowledgment of receipt of such registered mail. Nothing
herein shall affect the right of any party to serve process in any other manner permitted by
applicable law.
Section 7.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
Section 7.11 Remedies. The Shareholder acknowledges that monetary damages would not
be an adequate remedy in the event that any covenant or agreement in this Agreement is not
performed in accordance with its terms, and it is therefore agreed that, in addition to and without
limiting any other remedy or right it may have, Parent or Merger Sub will have the right to an
injunction, temporary restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically the terms and provisions
11
hereof. The Shareholder agrees not to oppose the granting of such relief in the event a court
determines that such a breach has occurred, and to waive any requirement for the securing or
posting of any bond in connection with such remedy. All rights, powers, and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and
not alternative, and the exercise or beginning of the exercise of any thereof by Parent or Merger
Sub shall not preclude the simultaneous or later exercise of any other such right, power or remedy
by such party.
Section 7.12 Headings. Headings of the Articles and Sections of this Agreement are
for convenience of the parties only and shall be given no substantive or interpretive effect
whatsoever. The table of contents to this Agreement is for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 7.13 Interpretation. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of this Agreement unless
otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The words
“hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. The word
“or” shall be deemed to mean “and/or.” All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered pursuant thereto unless
otherwise defined therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the feminine
and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein
or in any agreement or instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in the case of
agreements or instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and instruments
incorporated therein. Each of the parties has participated in the drafting and negotiation of this
Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be
construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of authorship of any of the provisions of this
Agreement.
Section 7.14 Counterparts. This Agreement may be executed in two or more
consecutive counterparts (including by facsimile or email pdf format), each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument, and shall become effective when one or more counterparts have been signed by each of
the parties and delivered (by telecopy, email pdf format or otherwise) to the other parties.
[Signature Pages to follow]
12
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the date and year first written above.
BEN HOLDINGS, INC. |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
BEN MERGER SUB, INC. |
||||
By: | /s/ Xxxxxxxxx Xxxxx | |||
Name: | Xxxxxxxxx Xxxxx | |||
Title: | Vice President | |||
[Signature
Page to Non-Tender and Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the date and year first written above.
[_______________] |
||||
[Signature
Page to Non-Tender and Support Agreement]
EXECUTION
ANNEX A
Summary of Terms
Management Rollover
Summary of Terms
Management Rollover
The following summarizes certain terms and conditions in connection with the rollover of the
Shareholder’s current equity interests in the Company. Capitalized terms not defined herein have
the meanings given such terms in the Non-Tender and Support Agreement by and among Parent, Merger
Sub and the Shareholder (the “Support Agreement”).
I. | Rollover Investment |
• | The Shareholder commits to invest into the Parent in connection with the Merger an amount equal to the amount specified in the Support Agreement (the “Rollover Amount”). | ||
• | The Rollover Amount will be invested in the same strip of securities and in the same relative proportions between securities in any strip as Apax and its affiliates (collectively, the “Sponsor”); provided, however, that at least 60% of the fair market value of any such strip of securities to be held by Apax and the Shareholder will consist of common stock and/or preferred stock that is not “nonqualified preferred stock” as defined in Section 351(g) of the Code. | ||
• | Notwithstanding that the Support Agreement provides that the Rollover Amount is determined based upon after-tax proceeds, after consultation with the Shareholder, and to the extent that Sponsor determines that it is reasonably feasible (after giving effect to the second bullet point of this Part I), Sponsor and Parent will cooperate with the Shareholder to achieve a tax-free rollover of the Rollover Amount within the corporate/capital structure selected by Sponsor for the transaction. No more than five (5) business days after the execution of the Merger Agreement, Shareholder shall notify Parent in writing (the “Rollover Notice”) whether Shareholder desires to achieve a tax-free rollover with respect to all or a portion of Shareholder’s Rollover Amount. Following the receipt of the Rollover Notice, but prior to the Acceptance Time, each of Parent, Sponsor and Shareholder shall use its reasonable efforts to negotiate and enter into definitive documents (the “Rollover Documents”) that effect the exchange of Company securities owned by the Shareholder representing the Rollover Amount for securities of Parent (and/or an Affiliate of Parent) on terms and conditions reasonably satisfactory to the parties. The shares of Common Stock to be so exchanged shall constitute “Rollover Shares” for purposes of the Merger Agreement. The Rollover Documents shall identify any shares of Common Stock that are being exchanged for securities of Parent prior to the Effective Time in a transaction that the parties intend to qualify as an exchange described in Section 351 of the Internal Revenue Code. | ||
• | The Shareholder’s investment will be fully vested and not be subject to forfeiture. |
II. | General Provisions |
• | The Shareholder’s investment will not be subject to repurchase upon the termination of Shareholder’s service to the Company. | ||
• | The Shareholder will be subject to a customary Securityholders Agreement that will contain customary management equityholder rights, including, without limitation, piggyback registration rights, tag along rights, transfer restrictions, drag along obligations and lock up provisions. Management’s rollover investment in any debt securities will have pari passu liquidity rights with Sponsor’s investment in debt securities. | ||
• | The Company intends that the Shareholder’s rollover investment be compensatory for purposes of the SEC’s exception to the best-price rule that requires that the consideration paid to any security holder for securities tendered in the tender offer be the highest consideration paid to any security holder for securities tendered in the tender offer. |