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About Centerview Partners

The firm is an operationally oriented private equity firm focused on the US consumer middle- and upper-middle market. The firm seeks to leverage its operational expertise and deep consumer industry relationships in partnership with existing owners and management to achieve strategic and operational excellence.

Centerview Partners Headquarter Location

31 West 52nd Street 22nd Floor

New York, New York, 10019,

United States

(212)380-2650

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Sun Life Financial : Agreement and Plan of Merger dated October 3, 2021 - Form 6-K

Oct 14, 2021

10/12 10/12 10/14/2021 | 05:32pm EDT Message : by and among DQ ACQUISITION CORP., and its capacity as the Representative October 3, 2021 24 27 32 34 45 51 54 54 58 63 65 67 71 72 72 73 77 77 82 83 Exhibit A - Accounting Principles/Working Capital Example [ - Redacted] Exhibit B - SAP Accounting Principles [ - Redacted] Exhibit C - Transaction Tax Benefits Estimate [ - Redacted] Exhibit D - Surplus Amount Example [ - Redacted] Exhibit E - Form of Certificate of Merger [ - Redacted] Exhibit F - Form of Letter of Transmittal [ - Redacted] Exhibit G - Form of Escrow Agreement [ - Redacted] iii AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of October 3, 2021, is made by and among DentaQuest Group, Inc., a Delaware corporation (the "Company"), Sun Life Assurance Company of Canada - U.S. Operations Holdings, Inc., a Delaware corporation ("Parent"), DQ Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), Sun Life Financial Inc., solely for purposes of Section 10.15, and Slingshot Securityholder Representative, LLC, a Delaware limited liability company, solely in its capacity as the representative for the Securityholders (the "Representative"). Parent, Merger Sub and the Company, and, solely in its capacity as and solely to the extent applicable, the Representative, shall each be referred to herein from time to time as a "Party" and collectively as the "Parties". Capitalized terms used and not otherwise defined herein have the meanings set forth in Article I below. WHEREAS, Parent desires to acquire one hundred percent (100%) of the issued and outstanding shares of capital stock of the Company in a reverse subsidiary merger transaction on the terms and subject to the conditions set forth herein; WHEREAS, the boards of directors of the Company, Parent and Merger Sub have each unanimously (i) determined that the Merger is fair to, and in the best interests of, their respective companies and stockholders and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth herein; WHEREAS, Parent, as the sole stockholder of Merger Sub, has executed and delivered to the Company, and Stockholders sufficient to deliver the Stockholder Consent have executed and delivered to Parent, a written consent in favor of the Merger to be effective upon the execution of this Agreement in accordance with Section 228(c) of the DGCL; and WHEREAS, in order to induce Parent and Merger Sub to enter into this Agreement, concurrently with the execution of this Agreement, certain Stockholders have entered into an agreement in support of the transactions contemplated by this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows: Article I 1.1 Certain Definitions. (a) For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1: "ACA Fee" means the "Health Insurance Providers Fee" as imposed by Section 9010 of the Patient Protection and Affordable Care Act, as amended, and any related Treasury Regulations. 1 "Accounting Principles" means the accounting principles, practices, procedures, policies and methods set forth in Exhibit A. "Action" means any civil, criminal or administrative action, suit, claim, litigation, arbitration or similar proceeding, in each case by or before a Governmental Body. "Additional Merger Consideration" means, as of any date of determination, without duplication, any purchase price adjustments arising under Section 2.10 payable to the Securityholders and any amounts payable to the Securityholders pursuant to Section 2.14. "Adjustment Time" means 12:01 a.m., New York, New York time, on the Closing Date. "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract or otherwise. "Allocation Schedule" means the Allocation Schedule setting forth: (i) each Securityholder's name; (ii) the number and type of shares of Common Stock held as of immediately before the Closing by such Securityholder; (iii) the number and type of Vested Options and Unvested Time Options (and the current exercise price thereof) held as of immediately before the Closing by such Securityholder; (iv) such Securityholder's Pro Rata Share; (v) a calculation of the aggregate Per Share Closing Merger Consideration with respect to all shares of Common Stock and/or Vested Options held by each Securityholder; (vi) a calculation of the aggregate Per Option Closing Merger Consideration with respect to all Unvested Time Options held by each Securityholder and (vii) a calculation of the aggregate amount to be paid to such Securityholder at the Closing based on the amounts determined in clauses (v) and (vi) of this definition. "Assets" means all material tangible properties and assets of the DQ Companies used in the conduct of their business as presently conducted. "Base Consideration" means $2,475,000,000. "Books and Records" means all books, files, reports and records held by any DQ Company. "Business Day" means any day of the year on which national banking institutions in New York, New York, are open to the public for conducting business and are not required or authorized to close. "CapM" means CapM LLC. 2 "CapM Letter" means that letter agreement between CapM and the Company dated June 2, 2021, entered into in connection the transactions contemplated hereby, engaging CapM for investment banking and financial advisory fees. "Centerview Letter" means that letter agreement between Centerview Partners and the Company dated May 11, 2021, entered into in connection with the transactions contemplated hereby, engaging Centerview Partners for investment banking and financial advisory fees. "Centerview Partners" means Centerview Partners LLC. "CFIUS" means the Committee on Foreign Investment in the United States, or any member agency thereof acting in its capacity as a member agency. "CFIUS Approval" means (a) the Company and Parent have received written notice from CFIUS that CFIUS has determined that the transactions contemplated by this Agreement (the "Transactions") are not "covered transactions" and are not subject to review under the DPA; (b) the Company and Parent have received written notice from CFIUS that it has concluded all action under the DPA with respect to the Transactions and has determined that there are no unresolved national security concerns; or (c) if CFIUS has sent a report (the "CFIUS Report") to the President of the United States requesting the President's decision, then the President has (i) announced a decision not to take any action to suspend or prohibit the Transactions or (ii) not taken any action to suspend or prohibit the Transactions after 15 days from the date of receipt of the CFIUS Report. "CFIUS Burdensome Condition" means any requirement to sell, divest, operate in a specified manner, hold separate (including through the establishment of a CFIUS voting trust, CFIUS proxy agreement or otherwise) or discontinue or limit, before or after the Closing Date, any assets, liabilities, businesses, operations or interest in any assets or businesses of Parent or any of its Affiliates or the DQ Companies, in each case, that would be materially adverse to Parent and its Affiliates, taken as a whole, or the DQ Companies, taken as a whole. "CFIUS Notice" means a joint voluntary notice with respect to the transactions contemplated by this Agreement submitted to CFIUS by the Company and Parent pursuant to 31 C.F.R. Part 800 Subpart E. "Closing Cash" shall mean all cash and cash equivalents convertible into cash within 90 days (including deposits, money market accounts, marketable securities and other liquid instruments), excluding any Restricted Cash, of the DQ Companies (other than the SAP Subsidiaries) on a consolidated basis and determined in accordance with the Accounting Principles as of the Adjustment Time. For the avoidance of doubt, and without duplication, Closing Cash shall be (i) reduced by checks, wires and drafts written by the DQ Companies (other than the SAP Subsidiaries) but not yet cleared as of the Adjustment Time and (ii) increased by checks, wires and drafts for the benefit of the DQ Companies (other than the SAP Subsidiaries) which have been issued to or received by the DQ Companies but not yet deposited or cleared as of the Adjustment Time. "Closing Condition Satisfaction Date" means the date on which the closing conditions set forth in Sections 7.1(f) and (g) have been satisfied or waived. 3 "Closing Merger Consideration" means (i) the Base Consideration, minus (ii) the amount of Estimated Company Indebtedness, plus (iii) the amount, if any, by which the Estimated Net Working Capital exceeds the Target Net Working Capital Amount, minus (iv) the amount, if any, by which Estimated Net Working Capital is less than the Target Net Working Capital Amount, plus (v) the amount of Estimated Cash, plus (vi) the Estimated Surplus Amount, minus (vii) the amount of Estimated Transaction Expenses, plus (viii) the amount of Estimated Transaction Tax Benefits, minus (ix) the Adjustment Escrow Amount and minus (x) the Representative Amount. "Closing Net Working Capital" shall mean, without duplication, as of the Adjustment Time, an amount equal to (a) the aggregate current assets of the DQ Companies (but excluding the SAP Subsidiaries) on a consolidated basis, minus (b) the aggregate current liabilities of the DQ Companies (but excluding the SAP Subsidiaries) on a consolidated basis, in each case, determined in accordance with the Accounting Principles. An illustrative calculation of Closing Net Working Capital as of June 30, 2021 is set forth on Exhibit A hereto (the "Working Capital Schedule"). For the avoidance of doubt, in the event of conflict between the Accounting Principles and the Working Capital Schedule, the Accounting Principles shall control. "Closing Payment Amount" means (i) the Closing Merger Consideration, minus (ii) the aggregate amount of Option Closing Consideration, minus (iii) the aggregate Per Share Closing Merger Consideration that would have been paid in respect of all of the Tax Withholding Shares. "Code" means the Internal Revenue Code of 1986, as amended. "Common Stock" means the Company's common stock, par value $0.01 per share. "Company Employee" means any individual employed by any DQ Company prior to or as of the Closing Date. "Company Fundamental Representations" means the representations and warranties of the Company set forth in the first sentence of Section 4.1(a), the first sentence of Section 4.1(b), Section 4.2, Section 4.4(a) and Section 4.22. "Company Indebtedness" means, as of the Adjustment Time, with respect to the DQ Companies excluding the SAP Subsidiaries, on a consolidated basis and determined in accordance with the Accounting Principles and without duplication, (A) all indebtedness for borrowed money (including all principal, accrued and unpaid interest, premiums, penalties, and breakage fees) owed under any credit facility, note, bond, debenture or other debt security, (B) any guarantees of any such items in clause (A) of this definition that are issued by any other Person (other than the DQ Companies) to the extent outstanding as of the Adjustment Time, (C) the settlement value (including breakage costs) payable under interest rate protection agreements outstanding (which amount may be negative to the extent such value represents a net receivable), including swaps, caps, collars, hedges or similar arrangements, (D) all reimbursement, payment or similar obligations under letters of credit, in each case only to the extent drawn (excluding any drawn amounts that have been reimbursed or funded with cash collateral as of the Adjustment Time), including letters of credit supporting insurance policies for workers' compensation, (E) all capital lease liabilities, (F) all obligations for deferred rent under leases, (G) any deferred purchase price in connection with the acquisition of any businesses (including pursuant to earn-outs, holdbacks and seller financing and other similar contingent or deferred consideration), but excluding trade payables to the extent taken into account in the determination of Closing Net Working Capital, (H) the Pre-Closing Tax Liability Amount, (I) the unpaid employer-paid portion of payroll Taxes for any Pre-Closing Tax Period deferred pursuant to Section 2302 of the CARES Act ("Payroll Tax Deferrals"), (J) accrued but unpaid severance with respect to individuals whose employment or other services terminates prior to the Closing Date (and not, for the avoidance of doubt, with respect to any individuals whose employment or other services are terminated by or at the direction of Parent), (K) accrued but unpaid bonus obligations and accrued but unpaid deferred compensation under the DQ Company Section 457(b) plan and (L) any outstanding but unpaid sign-on, special or retention bonus obligations pursuant to a Company Benefit Plan, whether or not accrued, except for unpaid sign-on bonuses due to the DQ Companies' Chief Operating Officer and Chief Information Officer. 4 "Company Subsidiary" means each Subsidiary of the Company. "Company Transaction Expenses" means, without duplication, all (i) fees, costs and expenses of the DQ Companies incurred or payable as of, and not paid prior to, the Effective Time payable to professionals (including investment bankers, attorneys, accountants and other consultants and advisors, including Ropes & Gray, CapM, Centerview Partners and Morgan Stanley) retained in connection with the negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including travel, accounting, legal and investment banking fees and expenses and (ii) severance, bonus, retention, change of control, incentive payments or similar payments or benefits that, in each case, become payable by any DQ Company as a result of, or in connection with, the consummation of the transactions contemplated hereby (excluding, for the avoidance of doubt, any "double-trigger" severance or other amounts due upon a termination by the Company without "cause" or resignation for "good reason" under any Company Benefit Plan following the Closing), in each case of this clause (ii), (x) including the employer-paid portion of any employment or payroll Taxes attributable thereto, and (y) excluding any "double trigger" payment obligations, any payments pursuant to an agreement entered into with or at the written direction of Parent or its Affiliates or their representatives, any amounts included in the determination of Closing Cash, Company Indebtedness, Surplus Amount or Closing Net Working Capital, any proceeds or value received in respect of any Options (including any Common Stock received in respect of Vested Options and any Restricted Cash Awards in respect of Unvested Options), and any amounts in respect of Legacy LTIP Cash Awards and Phantom Awards and (iii) the employer-paid portion of any employment or payroll Taxes in respect of any payment of any consideration to Option Holders in respect of such holder's Options. For clarity, Company Transaction Expenses shall not include any amount (a) that Parent is responsible for paying pursuant to this Agreement, pursuant to Sections 6.2(h), 6.5 or 6.16 or (b) incurred by, or at the written direction of, Parent or any of its Affiliates or representatives. "Confidential Information" means all trade secrets and other confidential information, including in respect of inventions, processes, designs, Software, know-how, research and development, and financial information. "Consent" means, with respect to any Person, any right of approval, authorization, exemption, waiver, permission or consent of any kind of such Person arising as a result of, or required in connection with, the consummation of the Merger or the other transactions contemplated by this Agreement. 5 "Copyrights" has the meaning set forth in Section 1.1 in the definition of Intellectual Property. "COVID-19" means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains and sequences), including any intensification, resurgence or any evolutions or mutations thereof, and/or related or associated or similar epidemics, pandemics, disease outbreaks or public health emergencies. "COVID-19 Measures" means any quarantine, "shelter in place," "stay at home," workforce reduction, social distancing, shut down, closure, sequester or any other applicable Law, order, directive, guidelines or recommendations by any Governmental Body, trade or industry group primarily as a result of or in response to COVID-19, including, but not limited to the Coronavirus Aid, Relief, and Economic Security Act (CARES). "Credit Facility" means the revolving credit facility under that certain Credit Agreement, dated as of September 25, 2019 (as amended by that certain First Amendment to Credit Agreement dated as of January 2, 2020, and as further amended, restated and/or supplemented from time to time prior to the date hereof), among the Company, DentaQuest, LLC, a Delaware limited liability company, as borrower, the lenders and other parties party thereto and Truist Bank, successor by merger to SunTrust Bank, as administrative agent and collateral agent. "Cybersecurity Incident" means unauthorized access to or use or corruption of the IT Systems (including a ransomware attack), or the unauthorized disclosure, use, corruption or loss of Personal Information or Confidential Information. "Data Protection Requirements" means all applicable (i) Privacy Laws; (ii) terms of any Contracts relating to the Company's collection, use, storage, disclosure, or cross-border transfer of personal data or Confidential Information; and (iii) industry standards and/or codes-of-conduct which govern the Company's collection, use, storage, disclosure, or cross-border transfer of Personal Information. "Disclosure Schedules" has the meaning set forth in the introductory paragraph to Article IV. "Domiciliary Department of Insurance" means the domiciliary state insurance regulator of the applicable SAP Subsidiary. "Domiciliary Insurance Code" means the insurance Laws of the domiciliary state of the applicable SAP Subsidiary. "DPA" means 50 U.S.C. §§ 4565 et seq., as may be amended from time to time, and including the regulations promulgated thereunder, codified at 31 C.F.R. Part 800, et seq. 6 "DQ Companies" mean the Company and the Company's Subsidiaries, each of which shall be referred to individually as a "DQ Company." "Environmental Law" means any Law relating to pollution or protection of the environment. "Equityholder Parties" means any past, present or future director, officer, employee, incorporator, member, manager, partner, stockholder, Affiliate, agent, attorney or representative of the DQ Companies or any of their respective Affiliates (including the Representative or any of its Affiliates) or any successor or assign thereof. "ERISA Affiliate" means, with respect to any Person, any trade or business, whether or not incorporated, which, together with such Person, is treated as a single employer under Section 141 of the Code. "Escrow Agent" means Wilmington Trust, NA, or another escrow agent reasonably acceptable to Parent and the Representative. "Final Merger Consideration" means (i) the Base Consideration, minus (ii) the amount of Company Indebtedness as finally determined pursuant to Section 2.9, plus (iii) the amount, if any, by which the Closing Net Working Capital as finally determined pursuant to Section 2.9 exceeds the Target Net Working Capital Amount, minus (iv) the amount, if any, by which the Closing Net Working Capital as finally determined pursuant to Section 2.9 is less than the Target Net Working Capital Amount, plus (v) the amount of Closing Cash as finally determined pursuant to Section 2.9, plus (vi) the Surplus Amount as finally determined pursuant to Section 2.9, minus (vii) the amount of Company Transaction Expenses as finally determined pursuant to Section 2.9, plus (viii) the Transaction Tax Benefits as finally determined pursuant to Section 2.9, minus (ix) the Adjustment Escrow Amount, and minus (x) the Representative Amount. "Form A Filings" means the filings of Form A Statements Regarding the Acquisition of Control of a Domestic Insurer with the respective Domiciliary Departments of Insurance regarding the proposed acquisition of control of the respective SAP Subsidiaries. "Forfeited Restricted Cash Award" means a Restricted Cash Award that is forfeited by an Option Holder under the terms of the applicable award agreement. "Fraud" means (a) an intentional misrepresentation of a material fact by a Person with respect to the making of a specific representation or warranty as expressly set forth in this Agreement; (b) actual knowledge that such representation is false; (c) a specific intention to induce the Party to whom such representation was made to act or refrain from acting in reliance upon it; (d) causing that Party, in justifiable reliance upon such false representation and with ignorance to the falsity of such representation, to take or refrain from taking action to such Party's material detriment; and (e) causing such Party to suffer losses as a result of, such reliance (it being understood that, for the avoidance of doubt, in no event shall Fraud include any claim based on constructive knowledge, negligent or reckless misrepresentation or a similar theory). Notwithstanding anything in this Agreement to the contrary, a claim for Fraud may only be made against the Person committing such Fraud. 7 "FTC" means U.S. Federal Trade Commission. "Fully Diluted Shares" means the sum of (x) the aggregate number of shares of Common Stock outstanding immediately prior to the Effective Time, (y) the aggregate number of Vested Options outstanding immediately prior to the Effective Time, and (z) the aggregate number of Unvested Time Options outstanding immediately prior to the Effective Time. "GAAP" means United States generally accepted accounting principles and practices as in effect from time to time. "Governing Documents" means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its legal affairs. For example, the "Governing Documents" of a corporation would be its certificate of incorporation and bylaws, the "Governing Documents" of a limited partnership would be its certificate of formation and its limited partnership agreement, and the "Governing Documents" of a limited liability company would be its certificate of formation and its limited liability company agreement. "Governmental Body" means any government or governmental or regulatory body thereof, or political subdivision thereof, whether U.S. or foreign, and whether federal, state, or local, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private). "Government Bid" means any offer, bid or proposal made by any DQ Company prior to the Closing Date that, if accepted, would result in a Government Contract. "Government Contract" means any Contract between any of the DQ Companies, on the one hand, and any (i) Governmental Body, (ii) any prime contractor of a Governmental Body in its capacity as a prime contractor or (iii) any higher tier subcontractor of a Governmental Body in its capacity as a subcontractor, on the other hand. "Hazardous Material" means any material or substance which is defined as a "hazardous waste," "hazardous substance," "hazardous material," "restricted hazardous waste," "industrial waste," "solid waste," "contaminant," "pollutant," "toxic waste" or "toxic substance" under any provision of Environmental Law. "Healthcare Laws" means all Laws pertaining to healthcare regulatory matters applicable to the DQ Companies, including, to the extent applicable, Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh (the Medicare statute), including specifically, the Ethics in Patient Referrals Act, as amended, 42 U.S.C. § 1395nn; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v (the Medicaid statute); the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the False Claims Act, 31 U.S.C. §§ 3729-3733 (as amended); the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58; the Civil Monetary Penalties Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; the Exclusion Laws, 42 U.S.C. § 1320a-7; HIPAA; the HITECH Act; all Laws relating to the provision, administration or management of, or billing or payment for, health care items or services, or relating to health care information, including all Laws relating to coding, coverage, reimbursement, claims submission and processing, or otherwise related to insurance fraud; all Laws relating to the licensure, certification, qualification or authority to transact business in connection with the provision of, payment for, or arrangement of, healthcare items or services, health benefits or health insurance, including Laws that regulate managed care, health insurance, third party payors and any Person bearing the financial risk for the provision or arrangement of healthcare services; all Laws relating to the evaluation of the appropriateness of and coverage for healthcare items and services, including Laws governing utilization review, utilization management and quality assurance; and all applicable implementing regulations, rules, ordinances, judgments, and orders; and any similar state and local statutes, regulations, rules, ordinances, judgments, and orders; and all applicable federal, state, and local licensing, regulatory and reimbursement and corporate practice of dentistry regulations, rules, ordinances, orders, and judgments applicable to the DQ Companies. 8 "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, including by the Health Information Technology for Economic and Clinical Health Act (HITECH), and any rules or regulations adopted by the U.S. Department of Health and Human Service (HHS) implementing HIPAA. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Income Tax" means any Tax imposed on or measured by net income or net profits, or any franchise or similar Taxes imposed in lieu thereof. "Insurance Licenses" means licenses under state insurance laws to conduct an insurance business, including, but not limited to, as an insurance company, health maintenance organization, organized delivery system, limited service health organization, a preferred provider network, a third party administrator or a producer. "Intellectual Property" means all intellectual property rights arising from or in respect of the following: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, renewals, extensions, provisionals or reissues of patent applications and patents issuing thereon (collectively, "Patents"), (ii) all trademarks, service marks, trade names, service names, brand names, trade dress rights, acronyms, tag-lines, slogans, logos, URLs, personalized subdomains, social media usernames (e.g., Twitter handles), Internet domain names, corporate names and other identifiers of source or origin, together with the goodwill associated with and symbolized by any of the foregoing, and all applications, registrations and renewals thereof, (collectively, "Marks"), (iii) copyrights and registrations and applications therefor and rights in copyrightable subject matter in published and unpublished works of authorship and mask work rights (collectively, "Copyrights"), (iv) all computer software, including application software (including mobile digital applications), system software and firmware, middleware, data, data bases and documentation, assemblers, applets, compilers and binary libraries, including all source code, executable code and object code versions of any and all of the foregoing, in any and all forms and media, and all related documentation ("Software") and (v) rights in Confidential Information. "IRS" means the Internal Revenue Service. 9 "IT Systems" means hardware, Software, data, databases, data communication lines, network equipment, Internet-related information technology infrastructure, wide area network and other information and telecommunications technology, owned, leased or licensed by any DQ Company. "Knowledge of the Company", "to the Company's Knowledge" or similar phrases means the actual knowledge without independent investigation (and without any duty of inquiry or any constructive, imputed or similar concepts of knowledge) of Steven Pollock, Akhil Sharma, Kamila Chytil, Bob Lynn, Roxanne Martinez, Kathy Kountze, Dave Abelman, Todd Cruse and Brett Bostrack. "Law" means any federal, state, local or non-U.S. law, statute, code, ordinance, rule or regulation. "Legacy LTIP" means the Long Term Incentive Plan of DentaQuest, LLC, as amended from time to time. "Legacy LTIP Cash Awards" means the outstanding right to receive cash payments granted under the Legacy LTIP. "Lien" means any lien, encumbrance, pledge, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude or transfer restriction. "Marks" has the meaning set forth in Section 1.1 in the Intellectual Property definition. "Material Adverse Effect" means any change, occurrence, event or effect that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the assets, business, financial condition or results of operations of the DQ Companies, taken as a whole, excluding any change, occurrence, event or effect attributable to any of the following, which shall not be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: (i) international, national, regional, local or industry-wide political, economic or business conditions (including financial, banking, credit, commodities, securities and capital market conditions and any disruption thereof or decline in the price of any security or any market index), (ii) acts of war (whether or not declared), sabotage, terrorism or military actions, including the commencement, continuation or escalation thereof, hurricanes, earthquakes, floods, tsunamis, tornadoes, mudslides, wild fires or other natural disasters and other force majeure events, (iii) conditions generally affecting, or general changes or developments in, the dental insurance industry, (iv) actual or proposed adoption of or changes in applicable Laws or applicable accounting regulations or principles (including GAAP or SAP), or actual or proposed changes in interpretation thereof, (v) any failure by any DQ Company to meet any internal or published projections, forecasts or revenue or earnings predictions for any period (although this clause (v) shall not apply to the underlying facts and circumstances that have given rise or contributed to any such failure to the extent not otherwise excluded from being taken into account), (vi) Parent's or Merger Sub's breach of this Agreement, (vii) the execution, announcement or pendency of this Agreement or of the Closing or the taking of any action expressly required by this Agreement (including effects thereof on relationships with customers, suppliers, referral sources, payors, employees, contractors or other business relationships of the DQ Companies resulting therefrom) or (viii) actual or threatened epidemic or pandemic spread of an infectious disease in the United States or elsewhere in the world (including COVID-19), any global health conditions, and any changes in applicable Laws by any Governmental Body newly enacted for, relating to or arising out of efforts to address any epidemic or pandemic spread of an infectious disease in the United States or elsewhere in the world (including COVID- 19), including any quarantine or similar directive and the COVID-19 Measures and the effects of any of the foregoing, except, in the case of the foregoing clauses (i), (ii), (iii), (iv) or (viii) to the extent such change, occurrence, event or effect has had or would reasonably be expected to have a material and disproportionate adverse effect on the DQ Companies as compared to other Persons which operate in the same industries as the DQ Companies. 10 "Morgan Stanley" means Morgan Stanley & Co. LLC. "Morgan Stanley Letter" means that letter agreement between Morgan Stanley and the Company dated May 28, 2021, entered into in connection the transactions contemplated hereby, engaging Morgan Stanley for investment banking and financial advisory fees. "NAIC" means the National Association of Insurance Commissioners. "Non-Recourse Party" means, with respect to a Party to this Agreement, any of such Party's former, current and future equity holders, controlling persons, directors, officers, employees, agents, representatives, Affiliates, members, managers, general or limited partners, or assignees (or any former, current or future equity holder, controlling person, director, officer, employee, agent, representative, Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing); provided that for the avoidance of doubt, no Party to this Agreement (in its capacity as such) will be considered a Non-Recourse Party. "Option" means an option to purchase Common Stock that is granted under the Option Plan and that is outstanding as of the Effective Time. "Option Closing Consideration" means, for each Unvested Time Option, the amount (if any) equal to the Per Option Closing Merger Consideration. "Option Consideration" means, for each Unvested Time Option, the amount (if any) equal to the sum of (A) the Per Option Closing Merger Consideration for such Unvested Time Option and (B) the Per Share Additional Merger Consideration. "Option Exercise Amount" means the sum of the exercise prices of all Vested Options and Unvested Time Options, measured as of immediately prior to the Effective Time. "Option Holder" means the holder of an Option. "Option Plan" means the DentaQuest Group, Inc. 2020 Stock Option Plan, as amended and restated. 11 "Optionholder Percentage" means the amount, expressed as a percentage, equal to the quotient obtained by dividing (i) the aggregate number of Unvested Time Options by (ii) the Fully Diluted Shares. "Order" means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award of a Governmental Body. "Ordinary Course of Business" means the ordinary and usual course of the DQ Companies' business (including recent past practice in light of COVID-19 and COVID-19 Measures and any reasonable action taken prior to the date of this Agreement in connection therewith). "Owned Intellectual Property" means all Intellectual Property owned or purported to be owned by any DQ Company. "Parent Fundamental Representations" means the representations and warranties of Parent set forth in Section 5.1, Section 5.2 and Section 5.5. "Parent Material Adverse Effect" means any change, occurrence, event or effect that, individually or in the aggregate, would or would reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated hereby. "Patents" has the meaning set forth in Section 1.1 in the Intellectual Property definition. "Per Option Closing Merger Consideration" means, for each Unvested Time Option as of immediately prior to the Effective Time, the amount (if any) by which the Per Share Closing Merger Consideration exceeds the exercise price of such Option. "Per Share Additional Merger Consideration" means the amount equal to the quotient obtained by dividing (i) the Additional Merger Consideration by (ii) the Fully Diluted Shares. "Per Share Closing Merger Consideration" means the amount equal to the quotient obtained by dividing (i) the sum of (x) Closing Merger Consideration plus (y) the Option Exercise Amount, by (ii) the Fully Diluted Shares. "Performance-Vesting Option" means each Option that is subject to both time-based vesting and performance-based vesting conditions. "Permits" means any approvals, authorizations, consents, licenses, permits or certificates of a Governmental Body, excluding Insurance Licenses. "Permitted Liens" means (a) Liens for Taxes, assessments and governmental charges or levies not yet delinquent, or which are being contested in good faith and for which adequate reserves are maintained on the financial statements of the DQ Companies; (b) Liens imposed by Law, such as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar liens arising in the Ordinary Course of Business securing obligations that are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP are maintained and are reflected on the Closing Statement; (c) pledges or deposits 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, including but not limited to amounts held in escrow in reserve accounts pursuant to customer Contracts; (e) all matters of record, including, without limitation, survey exceptions, reciprocal easement agreements and other encumbrances on title to real property (but excluding all mortgages, deeds of trust or similar instruments not issued pursuant to the Credit Facility (if any)); (f) all applicable zoning, entitlement, conservation restrictions and other land use and environmental regulations; (g) all exceptions, restrictions, easements, charges, rights-of-way and other Liens set forth in any Permits, any deed restrictions, groundwater or land use limitations or other institutional controls utilized in connection with any required environmental remedial actions, or other state, local or municipal franchise applicable to any of the DQ Companies or any of their respective properties which do not, individually or in the aggregate, materially interfere with the use, occupancy or operation of the Leased Real Property as currently used, occupied and operated by the DQ Companies; (h) Liens on assets that are leased; (i) non-exclusive licenses of intellectual property in the Ordinary Course of Business; (j) such non-monetary Liens, if any, that do not have, individually or in the aggregate, a Material Adverse Effect; (k) Liens that will be removed at or prior to Closing; (l) Liens issued pursuant to the Credit Facility, and (m) Liens referred to in the Disclosure Schedule. 12 "Person" means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity. "Personal Information" shall have the meaning of such term or like terms set forth in the Data Protection Requirements (including without limitation "Protected Health Information" as defined in HIPAA). "Phantom Plans" means (i) the Phantom Stock Option Plan of DentaQuest Group, Inc. and (ii) the Phantom Stock Unit Plan of DentaQuest Group, Inc., in each case, as amended from time to time. "Phantom Awards" means outstanding rights to receive cash payments granted under the Phantom Plans. "Pre-Closing Tax Liability Amount" means, without duplication, the positive amount, if any, of the accrued but unpaid liability of the DQ Companies for current Income Taxes, in respect of any Pre-Closing Tax Period beginning on or after January 1, 2020, after reduction for all estimated Income Tax payments and other current income tax receivables or other current Income Tax assets, measured on a consolidated basis (i.e., taken as a whole, including both SAP Subsidiaries and all other DQ Companies) but calculated separately for each relevant jurisdiction imposing Income Tax, plus an amount equal to fifty percent (50%) of all Transfer Taxes; provided, however, that the "Pre-Closing Tax Liability Amount" (a) shall not include (i) any deferred Income Taxes, (ii) any intercompany obligations or other intercompany amounts related to Income Taxes, in each case solely among the DQ Companies, including pursuant to tax sharing, tax allocation, or tax reimbursement agreements or similar arrangements, (iii) any amounts in respect of any Taxes imposed on the DQ Companies as a result of transactions occurring on the Closing Date outside the Ordinary Course of Business after the Closing or otherwise properly allocable (based on, among other relevant factors, the factors set forth in Treasury Regulations section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing, or (iv) any Payroll Tax Deferrals, (b) shall be determined using consistent elections, methods, procedures, and judgments applied in connection with the most recent income tax returns filed prior to the Adjustment Time, (c) shall be calculated by treating the Closing Date as the final day of the taxable year of each DQ Company and (d) shall be calculated without regard to deductions for amounts to the extent taken into account in the definition of Transaction Tax Benefits. 13 "Pre-Closing Tax Period" means any taxable period ending on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date. "Privacy Laws" means all applicable Laws pertaining to data protection, data privacy, data security, data breach notification, and cross-border data transfer, including without limitation the Gramm-Leach-Bliley Act of 1999, as amended, and HIPAA. For the avoidance of doubt, the Identity Theft Red Flag Rules under the Fair and Accurate Credit Transactions Act of 2003 and any similar state Laws shall not be deemed to be "Privacy Laws" hereunder. "Pro Rata Share" means, with respect to any shares of Common Stock, Vested Options, and/or Unvested Time Options held by any Securityholder, the quotient (expressed as a percentage) obtained by dividing (a) the sum of (i) the number of such shares of Common Stock held by such Securityholder immediately prior to the Effective Time, (ii) the number of such Vested Options held by such Securityholder immediately prior to the Effective Time, and (iii) the number of such Unvested Time Options held by such Securityholder as of immediately prior to the Effective Time, by (b) the Fully Diluted Shares as of immediately prior to the Effective Time. "R&W Insurance Policy" means any representation and warranty liability insurance policy obtained by Parent or its designees insuring against breach of the representations or warranties set forth in Article IV or any agreement, document or certificate. "Registered Intellectual Property" means all Patents and Patent applications, all Copyright registrations and registration applications, and all registrations and registration applications for Marks (including Internet Domain Names) that, in each case, are Owned Intellectual Property. "Release" means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the environment. "Restricted Cash" means any cash or cash equivalents of the DQ Companies (other than the SAP Subsidiaries) to the extent included in restricted cash on the balance sheet of the DQ Companies determined in accordance with the Accounting Principles. 14 "SAP" means, as to any SAP Subsidiary, the statutory accounting practices and procedures prescribed by or permitted by the applicable Governmental Body in the jurisdiction in which the SAP Subsidiary is domiciled, consistently applied by such SAP Subsidiary. "SAP Accounting Principles" means the accounting principles, practices, procedures, policies and methods set forth in Exhibit B. "SAP Subsidiaries" means each DQ Company set forth on Schedule 1.1(a) attached hereto. "Securityholder" means a Stockholder or a holder of an Option. "Stockholder" means a holder of Common Stock. "Stockholder Consent" means the requisite affirmative vote of the Stockholders in accordance with the DGCL and the Company's Governing Documents approving the Merger and this Agreement. "Straddle Period" means any taxable period that includes but does not end on the Closing Date. "Subsidiary" means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or any partnership, limited liability company, association or other business entity of which a majority of the partnership, limited liability company or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing member or general partner or similar position of such partnership, limited liability company, association or other business entity. "Surplus Amount" means, as of the Adjustment Time, an amount equal to the difference (which may be positive or negative) of (a) the sum of (i) the total capital and surplus of DentaQuest USA Insurance Company, (ii) the total capital and surplus of Dental Care Plus Inc., (iii) the total capital and surplus of DentaQuest of New Jersey, LLC, (iv) the total capital and surplus of DentaQuest of Florida Inc. and (v) the tangible net equity of California Dental Network, in each case, as determined in accordance with the SAP Accounting Principles less (b) $[Redacted dollar amount]. An illustrative calculation of the Surplus Amount as of June 30, 2021 is set forth on Exhibit D (the "Surplus Amount Schedule"). "Target Net Working Capital Amount" means $[Redacted dollar amount], which amount, for the avoidance of doubt, is a [Redacted dollar amount]. 15 "Tax Return" means any return, declaration, report, claim for refund, estimate, information return or statement, including any schedule or attachment thereto and including any amendment thereof required to be filed in respect of any Taxes. "Taxes" means (i) all federal, state, local or non-U.S. taxes, including, without limitation, all net income, alternative or add-on minimum, intangible, premium, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, and any similar duty, fee assessment, or like governmental charge in the nature of Taxes, and (ii) all interest, penalties, fines, additions to tax or additional amounts imposed by any Taxing Authority in connection with any item described in clause (i). "Taxing Authority" means each national, state, provincial or local government or any governmental, administrative or regulatory authority, agency, court, commission, tribunal, body or instrumentality of any government that imposes, regulates, administers, collects or regulates the collection of Taxes in any applicable jurisdiction. "Time-Vesting Option" means each Option that is subject solely to time-based vesting conditions. "Transaction Tax Benefits" shall mean an amount equal to the product of (i) 24% and (ii) an amount equal to, without duplication, the aggregate amount of (a) any amounts included within the definition of Company Transaction Expenses that are deductible for U.S. federal Income Tax purposes (which shall be determined inclusive of any amounts paid prior to the Effective Time that would have been Company Transaction Expenses if they were unpaid as of the Effective Time, provided that in the case of payments under the CapM Letter, Centerview Letter and Morgan Stanley Letter which constitute success based fees as defined in Treasury Regulation Section 1.263(a)-5(f) and Revenue Procedure 2011-29, 2011-18 I.R.B., such amount will be determined using the seventy percent (70%) safe harbor provided in such Revenue Procedure), (b) an amount equal to the sum of (A) an amount equal to (i) the product of (x) the Per Share Closing Merger Consideration multiplied by (y) the total amount of all Vested Options minus (ii) the sum of the exercise prices of all Vested Options plus (B) 80% multiplied by an amount equal to (i) the product of (x) the Per Share Closing Merger Consideration multiplied by (y) the total amount of all Unvested Time Options minus (ii) the aggregate exercise price of all Unvested Time Options (for the avoidance of doubt, without regard to whether any such amounts, including any portion reflecting a Restricted Cash Award, remain unvested or unpaid at or around the Closing Date), and (c) unamortized fees and other deferred financing costs related to the repayment of the Credit Facility on the Closing Date, taking into account Section 163(j) of the Code, to the extent applicable; in each case determined in a manner consistent with the illustrative example of the Transaction Tax Benefits set forth on Exhibit C hereto. "Unvested Performance Option" means each Performance-Vesting Option that will not be performance-vested after giving effect to the transactions occurring at the Effective Time. "Unvested Time Option" means each (i) Time-Vesting Option that is unvested as of immediately prior to the Effective Time and (ii) Performance-Vesting Option that will be performance-vested after giving effect to the transactions occurring at the Effective Time, but is not time-vested as of immediately prior to the Effective Time. 16 "Vested Option" means each (i) Time-Vesting Option that is vested as of immediately prior to the Effective Time and (ii) Performance-Vesting Option that is time-vested as of immediately prior to the Effective Time and that will be performance-vested after giving effect to the transactions occurring at the Effective Time. "Virus" means malicious code, whether or not capable of replication or attachment to disks or other files, that is capable of performing an illicit activity or replicating itself on a computer or network of computers and thereby damaging other computer programs or data located on such computer or network or otherwise causing any computer data, memory or related hardware to become, without specific user instructions, erased, altered or unusable. The term shall include, without limitation, viruses, Trojan horses, time bombs, malware, worms or similar malicious software, programs or files. "Vulnerability" means a flaw or weakness in the IT Systems that could cause or be exploited to cause a Cybersecurity Incident. "WARN Act" means the Worker Adjustment and Retraining Notification Act, or any similar Law. "Willful Breach" means a material breach of a covenant set forth in this Agreement that is a consequence of an act or a failure to act undertaken by the breaching Person with actual knowledge that such Person's act or failure to act would result in or constitute a material breach of this Agreement. "Windward Technology" means the Software, systems and technology (including all dental and vision benefits management, claims processing and web portal technology) known as "Windward" as further described on Schedule 1.1(b). (b) Other Definitional and Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: (i) When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. (ii) Any reference in this Agreement to "$" or "Dollars" shall mean U.S. dollars. (iii) The Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. All Exhibits 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 Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. Parent and Merger Sub acknowledge and agree that all documents and materials deposited in the electronic data room established by the Company or its representatives in connection with the transactions contemplated by this Agreement (the "Data Room") as of October 1, 2021 are deemed to have been delivered or made available to Parent, Merger Sub and its and their representatives. 17 (iv) Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any "Section" are to the corresponding Section of this Agreement unless otherwise specified. The words such as "herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word "including" or any variation thereof means "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The word "material" or any variation thereof when used in Article IV in relation to, or to describe an effect on, the DQ Companies or any DQ Company means "material to the DQ Companies (taken as a whole)." The words "to the extent" shall mean the degree to which a subject or other thing extends, and shall not simply mean "if". The term "or" has the inclusive meaning represented by the phrase "and/or." The words "shall" and "will" shall be construed as creating a mandatory obligation. (v) Accounting terms that are not otherwise defined in this Agreement have the meanings given to them in the Accounting Principles (or, if not defined in the Accounting Principles, under GAAP), or where applicable in respect of the SAP Subsidiaries, the SAP Accounting Principles (or, if not defined in the SAP Accounting Principles, under SAP), as applicable. To the extent that the definition of an accounting term defined in this Agreement, the Accounting Principles or the SAP Accounting Principles is inconsistent with the meaning of such term under GAAP or SAP, as applicable, the definition set forth in this Agreement, the Accounting Principles or the SAP Accounting Principles, shall control. (vi) Any reference to any particular Code section or Law shall be interpreted to include any revision of or successor to that section regardless of how it is numbered or classified. (c) Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. The specification of any dollar amount or the inclusion of any item in the representations and warranties contained in this Agreement or the Disclosure Schedules or Exhibits attached hereto is not intended to imply that the amounts, or higher or lower amounts, or the items so included, or other items, are or are not required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened) is material or are within or outside of the Ordinary Course of Business, and no Party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement or the Disclosure Schedules or Exhibits in any dispute or controversy between the Parties as to whether any obligation, item or matter not described or included in this Agreement or in any Schedule or Exhibit is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) is material or is within or outside of the Ordinary Course of Business for purposes of this Agreement. The information contained in this Agreement and in the Disclosure Schedules and Exhibits hereto is disclosed solely for purposes of this Agreement, and no information contained herein or therein shall be deemed to be an admission by any Party to any third party of any matter whatsoever (including any violation of Law or breach of contract). 18 (d) Cross-References of Other Definitions. Each capitalized term listed below is defined in the corresponding Section of this Agreement: Term 2.1 The Merger. (a) Subject to the terms and conditions hereof, at the Effective Time, Merger Sub shall merge (the "Merger") with and into the Company in accordance with the General Corporation Law of the State of Delaware (the "DGCL"), whereupon the separate existence of Merger Sub shall cease, and the Company shall be the surviving company (the "Surviving Company"). (b) At the Closing, the Company and Merger Sub shall cause a certificate of merger substantially in the form of Exhibit E hereto (the "Certificate of Merger") to be executed, acknowledged and filed with the Secretary of State of the State of Delaware and make all other filings or recordings required by the DGCL in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such other time as Parent and the Company shall agree and specify in the Certificate of Merger (the "Effective Time"). (c) From and after the Effective Time, except as set forth in Section 10.12, the Surviving Company shall succeed to all of the assets, rights, privileges, immunities, powers and franchises of, and be subject to all of the liabilities, restrictions, disabilities and duties of, the Company and Merger Sub, all as provided under the DGCL. 2.2 Effect on Common Stock. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof: 21 (a) Each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) shall be converted into the right to receive, subject to the terms of this Agreement, an amount in cash equal to the sum of: (i) the Per Share Closing Merger Consideration; and (ii) to be paid as and when provided herein, the Per Share Additional Merger Consideration. (b) Each share of Common Stock, if any, held immediately prior to the Effective Time by Parent, Merger Sub or the Company shall be canceled and no payment shall be made with respect thereto ("Excluded Shares"). (c) Each share of common stock of Merger Sub that is issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and non-assessable share of common stock of the Surviving Company. (d) Notwithstanding anything to the contrary in this Agreement, Parent, Merger Sub and, following the Closing, the Surviving Company shall be entitled to rely on, without any obligation to investigate or verify the accuracy or correctness thereof, the allocation of proceeds and payment instructions set forth in the Estimated Closing Statement and the updated Allocation Schedule delivered pursuant to the final sentence of Section 2.9. 2.3 Treatment of Options. (a) At the Effective Time (but immediately prior to the transactions contemplated in Section 2.2), by virtue of the Merger and without any action on the part of any Option Holder and pursuant to the terms of the Option Plan, each Option Holder's Vested Options shall automatically be exercised and such holder thereof shall receive a number of whole shares (rounded down to the nearest whole share) of Common Stock equal to (i) the number of shares of Common Stock underlying the Vested Options so exercised, reduced by (ii) a number of shares of Common Stock equal to (A) the aggregate sum of the exercise prices of such Vested Options divided by (B) the Per Share Closing Merger Consideration (such shares withheld for the exercise prices, the "Exercise Price Shares") and such difference between clauses (i) and (ii), the "Net Exercise Option Shares"). The Net Exercise Option Shares shall be further reduced by a number of whole shares of Common Stock (rounded down to the nearest whole share) (with each such whole share valued at the Per Share Closing Merger Consideration) with a value equal to the amount of all applicable federal, state and local income or other taxes required or permitted to be withheld in connection with the exercise of such Vested Options (unless the Option Holder has otherwise satisfied such withholding obligations) in a manner consistent with the Option Plan (any such shares withheld for taxes, the "Tax Withholding Shares"). The Net Exercise Option Shares (after taking into account the reduction described in the immediately preceding sentence with respect to the Tax Withholding Shares) received by the Option Holder shall be treated in accordance with Section 2.2(a). The Exercise Price Shares and Tax Withholding Shares shall be retained by the Company and shall be treated as Excluded Shares under Section 2.2(b). The Surviving Company shall, or shall cause one of its Affiliates to, use any amounts that would otherwise be paid to the applicable Option Holder in respect of the Tax Withholding Shares to pay the employment Tax withholding amounts for the Option Holders' exercise of the Vested Options hereunder. 22 (b) At the Effective Time, by virtue of the Merger and without any action on the part of any Option Holder and pursuant to the terms of the Option Plan, each Unvested Time Option shall be automatically cancelled and converted into a restricted cash award having a value equal to the Option Consideration, and shall remain subject to the then-remaining time-vesting conditions contained in the award held by any Option Holder and be payable at the time (if any) of satisfaction of such time-vesting conditions in the award agreement (a "Restricted Cash Award"). (c) At the Closing, the Parent shall deliver an amount equal to the aggregate Per Option Closing Merger Consideration for all Unvested Time Options (such amount, the "Optionholder Escrow Amount") in immediately available funds into a separate escrow account (the "Optionholder Escrow Account"), such account to be established and maintained by the Escrow Agent pursuant to the Escrow Agreement (and which agreement, in any event, shall require that, prior to each payment from the Optionholder Escrow Account to any Option Holder or Parent (in the case of a Forfeited Restricted Cash Award), the Escrow Agent shall have first received a joint written instruction from Parent and the Representative to pay the applicable Option Holder or Parent (as applicable) the applicable amount in respect of such Option Holder's Restricted Cash Award or Forfeited Restricted Cash Award (as applicable)). Subject to Section 2.12 and Section 2.13 below, the aggregate Per Option Closing Merger Consideration payable to a holder of Unvested Time Options immediately prior to the Effective Time shall be paid to (i) the applicable Option Holder from the Optionholder Escrow Account on the first regularly scheduled payroll date following the date on which the applicable portion of such holder's Restricted Cash Award vests in accordance with the applicable award agreement and (ii) Parent from the Optionholder Escrow Account within five (5) Business Days following the date on which the applicable portio

Centerview Partners Investments

1 Investments

Centerview Partners has made 1 investments. Their latest investment was in VNU Media as part of their Private Equity on December 12, 2006.

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Centerview Partners Investments Activity

investments chart

Date

Round

Company

Amount

New?

Co-Investors

Sources

12/18/2006

Private Equity

VNU Media

Yes

1

Date

12/18/2006

Round

Private Equity

Company

VNU Media

Amount

New?

Yes

Co-Investors

Sources

1

Centerview Partners Portfolio Exits

1 Portfolio Exit

Centerview Partners has 1 portfolio exit. Their latest portfolio exit was VNU Media on May 28, 2012.

Date

Exit

Companies

Valuation
Valuations are submitted by companies, mined from state filings or news, provided by VentureSource, or based on a comparables valuation model.

Acquirer

Sources

5/28/2012

Acquired

Undisclosed Investors

1

Date

5/28/2012

Exit

Acquired

Companies

Valuation

Acquirer

Undisclosed Investors

Sources

1

Centerview Partners Fund History

2 Fund Histories

Centerview Partners has 2 funds, including Centerview Capital Technology Fund LP.

Closing Date

Fund

Fund Type

Status

Amount

Sources

2/10/2015

Centerview Capital Technology Fund LP

Buyouts & Acquisitions

$157M

1

2/28/2009

Centerview Capital LP

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$99M

10

Closing Date

2/10/2015

2/28/2009

Fund

Centerview Capital Technology Fund LP

Centerview Capital LP

Fund Type

Buyouts & Acquisitions

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Status

Amount

$157M

$99M

Sources

1

10

Centerview Partners Team

1 Team Member

Centerview Partners has 1 team member, including current Founder, James M. Kilts.

Name

Work History

Title

Status

James M. Kilts

Founder

Current

Name

James M. Kilts

Work History

Title

Founder

Status

Current

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