Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Item 1.01 Entry into Material Definitive Agreement.
Acquisition Agreement
On December 15, 2020, Cardtronics plc, a public limited
company incorporated under the laws of England and Wales (the “Company” or “Cardtronics”),
entered into an Acquisition Agreement (the “Acquisition Agreement”), with Catalyst Holdings Limited, a private
limited company incorporated under the laws of England and Wales (“BidCo”) and affiliated with investment funds
managed by affiliates of Apollo Global Management, Inc., pursuant to which BidCo has agreed to acquire the Company by means
of a court-sanctioned scheme of arrangement under Part 26 of the U.K. Companies Act of 2006 (the “Scheme”)
for $35.00 per share (the “Per Share Consideration”), subject to the terms and conditions of the Acquisition
Agreement (such transaction, the “Acquisition”). With the exception of Douglas Braunstein, the board of directors
of the Company (the “Board”) has approved the Acquisition Agreement and the transactions contemplated thereby,
including the Acquisition. Douglas Braunstein is the Managing Partner and Founder of Hudson Executive Capital (“HEC”),
a 19.4% shareholder of the Company that has agreed to rollover certain of its Ordinary Shares (as defined below) in connection
with the Acquisition, and he has abstained from all discussions and approvals in connection with the proposed transaction.
Pursuant to the Scheme and subject to the terms and conditions
of the Acquisition Agreement, on the effective date of the Acquisition, BidCo shall acquire all of the Company’s issued and
to be issued ordinary shares, nominal value $0.01 per share (the “Ordinary Shares”) other than (a) Ordinary
Shares legally or beneficially held by BidCo or any of its subsidiaries (or any nominee on their behalf), (b) any Ordinary
Shares held in treasury or owned, directly or indirectly, by the Company or any of its subsidiaries and (c) any Ordinary Shares
acquired by BidCo or its designee(s) pursuant to a contribution agreement between HEC and BidCo, none of which will be covered
by the Scheme.
Pursuant to the Acquisition Agreement, immediately prior
to the effective date of the Acquisition, each then-outstanding (a) option to purchase Ordinary Shares (each, an
“Option”) granted under any director or employee stock option or compensation plan or arrangement of the
Company (collectively, the “Company Share Plans”) prior to calendar year 2021, (b) award for restricted
stock units with respect to Ordinary Shares that vests solely based on the passage of time (each, a “Company
RSU”) granted under any Company Share Plan prior to calendar year 2021 and (c) award for restricted stock units
with respect to Ordinary Shares that vests based on both performance and the passage of time (each, a “Company
PSU”) granted under any Company Share Plan prior to calendar year 2021, in each case, whether or not vested, shall
automatically and without any action on part of the holder thereof, be cancelled and converted into the right to receive an
amount in cash equal to: (i) in the case of Options, the product of the excess, if any of the Per Share Consideration over
the applicable exercise price per Ordinary Share of such Option and the number of Ordinary Shares subject to such Option;
(ii) in the case of an award for Company RSUs, the product of the Per Share Consideration and the number of Ordinary Shares
subject to such Company RSU award; and (iii) in the case of an award for Company PSUs, the product of the Per Share
Consideration and the number of Ordinary Shares subject to such Company PSU award (with such number of Ordinary Shares based
on the greater of the target level achievement and the actual level of achievement of any performance goals as determined by
the Board immediately prior to the effective date of the Acquisition based on prorated performance goals); in each case, payable
(without any crediting of interest for the period from the effective date of the Acquisition through the date of payment) as
soon as reasonably practicable (but no later than the first payroll date) after the effective date of the Acquisition (or
such later date as required by Section 409A of the Code).
Additionally, pursuant to the Acquisition Agreement,
immediately prior to the effective date of the Acquisition, each then-outstanding (a) Option that was granted under any
Company Share Plan in calendar year 2021 (each, a “2021 Option”), (b) award for Company RSUs that was
granted under any Company Share Plan in calendar year 2021 (each, a “2021 Company RSU”) and (c) award for
Company PSUs that was granted under any Company Share Plan in calendar year 2021 (each, a “2021 Company
PSU”), shall automatically and without any action on part of the holder thereof, be cancelled and converted into
the right to receive an amount in cash equal to: (i) in the case of 2021 Options, the product of the excess, if any, of the
Per Share Consideration over the applicable exercise price per Ordinary Share of such 2021 Option and the number of Ordinary
Shares subject to such 2021 Option; (ii) in the case of an award for 2021 Company RSUs, the product of the Per Share
Consideration and the number of Ordinary Shares subject to such 2021 Company RSU award; and (iii) in the case of an award for
2021 Company PSUs, the product of the Per Share Consideration and the number of Ordinary Shares subject to such 2021 Company
PSU award (with such number of Company Shares based on the target level achievement); in each case, payable (without any
crediting of interest for the period from the effective date of the Acquisition through the date of payment) as soon as
reasonably practicable (but no later than the first payroll date) after each date that any portion of such 2021 Option, 2021
Company RSU or 2021 Company PSU would have otherwise vested in accordance with its terms (excluding any performance
conditions) (but only if such conditions to vesting are satisfied prior to each such vesting date), subject to acceleration
on certain terminations of employment, and to be paid by the Company on the terms and conditions set forth in the Acquisition
Agreement.
The Company has made customary representations, warranties and
covenants in the Acquisition Agreement, including, among others, covenants: (a) to conduct its business in the ordinary course
of business during the interim period between the execution of the Acquisition Agreement and the consummation of the proposed transaction
and (b) not to engage in specified types of transactions or take specified actions during such period unless agreed to in
writing by BidCo.
The Company is not permitted, among other things, to (i) initiate,
solicit, or knowingly encourage or facilitate any inquiries, proposals or offers with respect to, or the making of, or that could
reasonably be expected to lead to, any “Acquisition Proposal” (as defined in the Acquisition Agreement), (ii) enter
into, continue or otherwise participate or engage in, facilitate or encourage, any negotiations or discussions concerning, or that
could reasonably be expected to lead to, an Acquisition Proposal, or provide access to its properties, books and records or any
information or data relating to any Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve,
endorse or recommend, any Acquisition Proposal, (iv) waive, terminate, modify or fail to enforce any provision of any “standstill”
or similar obligation of any Person (other than BidCo) with respect to the Company or any of its subsidiaries, (v) take any
action to make the provisions of any takeover law, or any restrictive provision of any applicable anti-takeover provision in the
Company’s organizational documents, inapplicable to any transactions contemplated by any Acquisition Proposal, (vi) execute
or enter into any merger agreement, acquisition agreement or other similar definitive agreement with respect to any Acquisition
Proposal or (vii) authorize any of, or commit or agree to do any of, the foregoing. However, subject to the satisfaction of
certain conditions, the Company and the Board, as applicable, are permitted to take certain actions which may, as more fully described
in the Acquisition Agreement, include changing the recommendation of the Board following receipt of a “Superior Proposal”
(as defined in the Acquisition Agreement) or after an “Intervening Event” (as defined in the Acquisition Agreement)
if the Board has concluded in good faith after consultation with its outside legal counsel that the failure to effect a change
of recommendation or termination of the Acquisition Agreement would violate the Board’s fiduciary duties under applicable
law.
Each party’s obligation to implement the Scheme is conditional
upon, among other conditions, the following: (a) the Scheme shall have been approved by a majority in number representing
not less than seventy-five percent (75%) in value of the shareholders of the Company who are on the register of members of the
Company (or the relevant class or classes thereof) as of the record date, present and voting (and who are entitled to vote) at
the meeting of the shareholders convened by order of the High Court of Justice in England and Wales (the “Court”)
to consider and vote on the Scheme and at any separate class meeting which may be required; (b) the resolutions required to
implement the Scheme shall have been duly passed by the requisite majority of the shareholders of the Company at the general meeting
of the shareholders; (c) the Court shall have sanctioned the Scheme (with or without modification (but subject to any modification
being on terms acceptable to BidCo and the Company)); and (d) the waiting period (and any extension thereof) under applicable
antitrust laws shall have expired or been earlier terminated and any required approvals thereunder shall have been obtained. Each
of the Company and BidCo must perform or comply in all material respects with all required agreements and covenants on or prior
to the date of the Court Hearing (as defined under the Acquisition Agreement).
The Acquisition Agreement may be terminated by mutual written
consent of the parties. The Acquisition Agreement also contains certain customary termination rights, including, among others,
the right of either party to terminate if (a) the consummation of the Acquisition does not occur on or before September 15,
2021, (b) if the Scheme is not sanctioned by the Court at the Court Hearing, (c) if the shareholders meetings have been
held and completed but the requisite votes of the shareholders of the Company have not been obtained, (d) if a governmental
entity issues an injunction preventing the Acquisition, and (e) in the event of an uncured breach of the Acquisition Agreement
by the other party that results in a condition to closing not being capable of satisfaction. The Acquisition Agreement also includes
a “fiduciary out” which enables the Company to terminate the Acquisition Agreement to accept a Superior Proposal prior
to the shareholder meetings. In addition, BidCo may terminate the Acquisition Agreement if the Board has effected a Change in Recommendation
(as defined in the Acquisition Agreement).
It is expected that, subject to the satisfaction or waiver of
all relevant conditions, the proposed transaction will be completed in the first half of calendar year 2021.
The foregoing description of the Acquisition Agreement and the
transactions contemplated thereby does not purport to be a complete description and is qualified in its entirety by reference to
the full text of the Acquisition Agreement, which is filed with this Current Report on Form 8-K (this “Form 8-K”)
as Exhibit 2.1 and incorporated by reference herein.
Irrevocable Undertakings
On December 15, 2020, HEC delivered to the Company a deed
of irrevocable undertaking (the “HEC Undertaking”) under which HEC agrees, among other things, to vote its Ordinary
Shares in favor of the Acquisition and against any proposal that would impede or frustrate the Acquisition. The HEC Undertaking
represents an aggregate of 8,644,880 Ordinary Shares, or approximately 19.4% of the outstanding Ordinary Shares as of December 13,
2020.
In addition, on December 15, 2020, each member of the
Board that holds Ordinary Shares (including Mr. Braunstein) delivered to the Company a deed of irrevocable undertaking
(collectively, the “Director Undertakings”) under which each such
director agrees, among other things, to vote his or her Ordinary Shares in favor of the Acquisition and against any proposal
that would impede or frustrate the Acquisition. The Director Undertakings represent an aggregate of 359,185 Ordinary Shares,
or approximately 0.8% of the outstanding Ordinary Shares as of December 13, 2020 (excluding 8,644,880 Ordinary Shares
beneficially owned by HEC and Mr. Braunstein that are included in the HEC Undertaking).
The HEC Undertaking and the Director Undertakings will terminate
in certain circumstances.
The foregoing description of the HEC Undertaking and the
Director Undertakings are each qualified in their entirety by reference to the full text of each such undertaking. A
Form of Director Undertaking is filed with this Form 8-K as Exhibit 10.1 and The HEC Undertaking is filed with this Form 8-K as Exhibit 10.2, each of which is incorporated by reference herein.
Limited Guarantee
On December 15, 2020, BidCo delivered to the Company a
Limited Guarantee in favor of the Company, among Apollo Investment Fund IX, L.P., Apollo Overseas Partners (Delaware 892) IX, L.P.,
Apollo Overseas Partners (Delaware) IX, L.P., Apollo Overseas Partners IX, L.P., and Apollo Overseas Partners (Lux) IX, SCSP and
the Company, guaranteeing certain of BidCo’s obligations under the Acquisition Agreement.
The foregoing description of the Limited Guarantee is qualified
in its entirety by reference to the full text of such agreement, which is filed with this Form 8-K as Exhibit 10.3 and
incorporated by reference herein.
7.01 Regulation FD Disclosure
On December 15, 2020, the Company issued a press release
announcing the execution of the Acquisition Agreement. The full text of the press release is attached hereto as Exhibit 99.1
and incorporated herein by reference.
On December 15, 2020, the Company sent a communication to its employees relating to the proposed transaction. The full text of the communication
is attached hereto as Exhibit 99.2 and incorporated herein by reference.
The information furnished under this Item 7.01 of this
Form 8-K, including Exhibit 99.1 and Exhibit 99.2, shall not be deemed to be “filed” for the purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise subject to the liabilities of that section.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Additional Information and Where to Find It
This Form 8-K may be deemed solicitation material in respect
of the proposed acquisition of the Company by affiliates of Apollo Global Management, Inc. (“Apollo”).
This Form 8-K does not constitute a solicitation of any vote or approval. In connection with the proposed transaction, the
Company plans to file with the Securities and Exchange Commission (the “SEC”) and mail or otherwise provide
to its shareholders a proxy statement regarding the proposed transaction. The Company may also file other documents with the SEC
regarding the proposed transaction. This document is not a substitute for the proxy statement or any other document that may be
filed by the Company with the SEC.
BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S SHAREHOLDERS
ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED BY THE COMPANY WITH
THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY REFERENCE THEREIN BEFORE MAKING ANY VOTING OR INVESTMENT
DECISION WITH RESPECT TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND
THE PARTIES TO THE PROPOSED TRANSACTION.
Any vote in respect of resolutions to be proposed at the Company’s
shareholder meetings to approve the proposed transaction, the Scheme or related matters, or other responses in relation to the
proposed transaction, should be made only on the basis of the information contained in the Company’s proxy statement (including
the Scheme documentation). Shareholders may obtain a free copy of the proxy statement and other documents the Company files with
the SEC (when available) through the website maintained by the SEC at www.sec.gov. The Company makes available free of charge on
its investor relations website at ir.cardtronics.com copies of materials it files with, or furnishes to, the SEC.
No Offer or Solicitation
This Form 8-K is for information purposes only and is not
intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation to purchase,
otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or approval in any
jurisdiction, pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities
in any jurisdiction in contravention of applicable law.
The proposed transaction will be implemented solely pursuant
to the Scheme, subject to the terms and conditions of the Acquisition Agreement, which contain the full terms and conditions of
the proposed transaction.
Participants in the Solicitation
The Company and its directors, executive officers and certain
employees and other persons may be deemed to be participants in the solicitation of proxies from the Company’s shareholders
in connection with the proposed transaction. Security holders may obtain information regarding the names, affiliations and interests
of the Company’s directors and executive officers in the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2019, which was filed with the SEC on March 2, 2020, and its definitive proxy statement for the 2020
annual general meeting of shareholders, which was filed with the SEC on April 1, 2020. To the extent the holdings of the Company’s
securities by the Company’s directors and executive officers have changed since the amounts set forth in the Company’s
proxy statement for its 2020 annual general meeting of shareholders, such changes have been or will be reflected on Statements
of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of such individuals in
the proposed transaction will be included in the proxy statement relating to the proposed transaction when it is filed with the
SEC. These documents (when available) may be obtained free of charge from the SEC’s website at www.sec.gov and the investor
relations page of the Company’s website at ir.cardtronics.com.
Forward Looking Statements
This Form 8-K relates to a proposed acquisition of the
Company by funds managed by affiliates of Apollo and includes forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995, as amended and are intended to be covered by the safe harbor provisions thereof. The forward-looking
statements relate to future events and are based on management’s current expectations and beliefs relating to anticipated
results of operations, business strategies, the anticipated benefits of the proposed transaction, the anticipated impact of the
proposed transaction on the Company’s business and future financial and operating results, the expected timing of the proposed
transaction, the anticipated closing date for the proposed transaction and other aspects of the Company’s operations or operating
results. These forward-looking statements generally can be identified by phrases such as “will,” “expect,”
“anticipate,” “foresee,” “forecast,” “estimate,” “intend,” “plan,”
“future,” “project,” “contemplate,” “could,” “would,” and similar expressions
that are intended to identify forward-looking statements, which are generally not historical in nature. It is uncertain whether
any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them do, what impact they
will have on the Company or its share price. The Company’s forward-looking statements involve certain assumptions and significant
risks and uncertainties (some of which are beyond its control) that could cause actual results to differ materially from its historical
experience and present expectations or projections, including but not limited to: the impact of public health crises, such as pandemics
(including coronavirus (COVID-19)) and epidemics and any related company or government policies and actions to protect the health
and safety of individuals or government policies or actions to maintain the functioning of national or global economies and markets;
the effect of the announcement of the proposed transaction on the ability of the Company to retain and hire key personnel and maintain
relationships with customers, suppliers and others with whom the Company does business, or on the Company’s operating results
and business generally; risks that the proposed transaction disrupts current plans and operations and the potential difficulties
in employee retention as a result of the proposed transaction; the outcome of any legal proceedings related to the proposed transaction;
the occurrence of any event, change or other circumstances that could give rise to the termination of the Acquisition Agreement;
the ability of the parties to consummate the proposed transaction on a timely basis or at all; the satisfaction of the conditions
precedent to consummation of the proposed transaction, including the ability to secure regulatory approvals on the terms expected,
at all or in a timely manner; the ability of the Company to implement its plans, forecasts and other expectations with respect
to its business after the completion of the proposed transaction and realize expected benefits; and business disruption following
the proposed transaction.
These risks, as well as other risks related to the proposed
transaction, will be included in the proxy statement that will be filed with the SEC in connection with the proposed transaction.
While the list of factors presented here is, and the list of factors to be presented in the proxy statement are, considered representative,
no such list should be considered to be a complete statement of all potential risks and uncertainties. For additional information
about other factors that could cause actual results to differ materially from those described in the forward-looking statements,
please refer to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as updated
by the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, and those set forth from
time-to-time in other filings with the SEC. Readers are cautioned not to place undue reliance on forward-looking statements contained
in this Form 8-K, which speak only as of the date of this Form 8-K. Except as required by applicable law, the Company
undertakes no obligation to publicly update or revise any forward-looking statements after the date they are made, whether as a
result of new information, future events, or otherwise.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CARDTRONICS PLC
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By:
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/s/
Gary W. Ferrera
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Gary W. Ferrera
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Chief Financial Officer
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December 15, 2020
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Exhibit 2.1
EXECUTION VERSION
ACQUISITION AGREEMENT
AMONG
CARDTRONICS PLC
AND
CATALYST HOLDINGS LIMITED
Dated as of December 15, 2020
TABLE OF CONTENTS
Page
Article I THE ACQUISITION
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2
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Section 1.1
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The Acquisition
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2
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Section 1.2
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Effective Date
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2
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Section 1.3
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Directors, Officers and Actions of the Board
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2
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Article II EFFECT OF THE ACQUISITION ON THE SHARE CAPITAL OF THE COMPANY
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3
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Section 2.1
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Acquisition Consideration
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3
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Section 2.2
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Treatment of Options, Company RSUs and Company PSUs
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3
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Section 2.3
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Payment of Consideration
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6
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Section 2.4
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Withholding Rights
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6
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Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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7
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Section 3.1
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Organization and Qualification; Subsidiaries
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7
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Section 3.2
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Organizational Documents
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8
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Section 3.3
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Capitalization
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8
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Section 3.4
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Authority
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10
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Section 3.5
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No Conflict; Required Filings and Consents
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11
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Section 3.6
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Compliance with Law; Licenses
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11
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Section 3.7
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SEC Filings; Financial Statements; Undisclosed Liabilities
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12
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Section 3.8
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Contracts
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14
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Section 3.9
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Absence of Certain Changes or Events
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17
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Section 3.10
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Absence of Litigation
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17
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Section 3.11
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Company Plans
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18
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Section 3.12
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Labor and Employment Matters
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20
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Section 3.13
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Insurance
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21
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Section 3.14
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Properties
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22
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Section 3.15
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Tax Matters
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23
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Section 3.16
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Proxy Statement and the Circular
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25
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Section 3.17
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Intellectual Property
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26
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Section 3.18
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Environmental Matters
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28
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Section 3.19
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Opinion of Financial Advisor
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28
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Section 3.20
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Brokers
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28
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Section 3.21
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Takeover Statutes; Rights Plan
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29
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Section 3.22
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Affiliate Transactions
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29
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Section 3.23
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Anti-Corruption; International Trade
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29
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Section 3.24
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Suppliers and Customers
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31
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Section 3.25
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Solvency
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31
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Section 3.26
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No Other Representations or Warranties
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31
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Article IV REPRESENTATIONS AND WARRANTIES OF BIDCO
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31
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Section 4.1
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Organization
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32
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Section 4.2
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Authority
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32
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Section 4.3
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No Conflict; Required Filings and Consents
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32
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Section 4.4
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Absence of Litigation
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33
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Section 4.5
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Operations of BidCo
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33
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Section 4.6
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Proxy Statement or Circular
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33
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Section 4.7
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Brokers
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34
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Section 4.8
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Financing
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34
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Section 4.9
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BidCo Guarantee
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35
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Section 4.10
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Vote/Approval Required
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35
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Section 4.11
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Solvency
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35
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Section 4.12
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Absence of Certain Agreements
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36
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Section 4.13
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No Other Information
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36
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Article V CONDUCT OF BUSINESS PENDING THE ACQUISITION
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37
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Section 5.1
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Conduct of Business of the Company Pending the Acquisition
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37
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Section 5.2
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No Control of Other Party’s Business
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42
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Article VI ADDITIONAL AGREEMENTS
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42
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Section 6.1
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Acquisition Proposals
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42
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Section 6.2
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No Change of Recommendation; Exception to No Change of Recommendation
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44
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Section 6.3
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Proxy Statement and Circular; Scheme Documentation, Information and Undertakings
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46
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Section 6.4
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Company Shareholders Meetings
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49
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Section 6.5
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Further Action; Efforts
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50
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Section 6.6
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Notification of Certain Matters
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52
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Section 6.7
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Access to Information; Confidentiality
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53
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Section 6.8
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Stock Exchange Delisting; Re-Registration as a Private Company; De-Registration under the Exchange Act
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54
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Section 6.9
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Publicity
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54
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Section 6.10
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Employee Benefits
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55
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Section 6.11
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Directors’ and Officers’ Indemnification and Insurance
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56
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Section 6.12
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Treatment of Company Indebtedness
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58
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Section 6.13
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BidCo Financing
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60
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Section 6.14
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Takeover Statutes
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66
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Section 6.15
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Transaction Litigation
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66
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Section 6.16
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Rule 16b-3
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67
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Section 6.17
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Director Resignations
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67
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Section 6.18
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Warrants
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67
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Section 6.19
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Switching
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68
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Article VII CONDITIONS OF THE ACQUISITION
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68
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Section 7.1
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Conditions to Obligation of Each Party to Effect the Acquisition
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68
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Section 7.2
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Conditions to Obligations of BidCo
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69
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Section 7.3
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Conditions to Obligations of the Company
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70
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Section 7.4
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Frustration of Conditions
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70
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Section 7.5
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General
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71
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Article VIII TERMINATION
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72
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Section 8.1
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Termination
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72
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Section 8.2
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Effect of Termination
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74
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Section 8.3
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Expenses
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78
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Article IX GENERAL PROVISIONS
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78
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Section 9.1
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Non-Survival of Representations, Warranties, Covenants and Agreements
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78
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Section 9.2
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Modification or Amendment
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78
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Section 9.3
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Waiver
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79
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Section 9.4
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Notices
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79
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Section 9.5
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Certain Definitions
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81
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Section 9.6
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Severability
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92
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Section 9.7
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Entire Agreement; Assignment
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92
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Section 9.8
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Parties in Interest
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92
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Section 9.9
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Governing Law
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93
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Section 9.10
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Headings
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93
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Section 9.11
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Counterparts
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93
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Section 9.12
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Specific Performance
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94
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Section 9.13
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Jurisdiction
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95
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Section 9.14
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WAIVER OF JURY TRIAL
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96
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Section 9.15
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Transfer Taxes
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96
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Section 9.16
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Interpretation
|
96
|
Section 9.17
|
Non-Recourse
|
97
|
INDEX OF DEFINED TERMS
Acquisition
|
1
|
Acquisition Proposal
|
44
|
Action
|
17
|
Affiliate
|
81
|
Agreement
|
1
|
Alternative Acquisition Agreement
|
81
|
Alternative Financing
|
61
|
Alternative Financing Commitment Letter
|
61
|
Anti-Corruption Laws
|
81
|
Anti-Money Laundering Laws
|
81
|
Antitrust or Foreign Investment Law
|
51
|
Applicable Date
|
11
|
Articles of Association
|
8
|
Audited Financial Statements
|
13
|
Bankruptcy and Equity Exception
|
10
|
Benefit Plan
|
81
|
BidCo
|
1
|
BidCo Disclosure Letter
|
31
|
BidCo Group
|
50
|
BidCo Guarantee
|
1
|
BidCo Information
|
46
|
BidCo Material Adverse Effect
|
70
|
BidCo Related Party
|
82
|
BidCo Termination Fee
|
76
|
Board
|
1
|
Business Day
|
82
|
CA 2006
|
1
|
Capitalization Date
|
8
|
Card Association
|
82
|
Card Association Rules
|
82
|
CARES ACT
|
82
|
Cash Consideration
|
3
|
Certificate of Incorporation
|
8
|
Circular
|
82
|
Clearances
|
69
|
Code
|
18
|
Commitment Letters
|
34
|
Company
|
1
|
Company Affiliate Transaction
|
29
|
Company Credit Facilities
|
82
|
Company Employees
|
18
|
Company Intellectual Property
|
25
|
Company Plan
|
18
|
Company PSU
|
5
|
Company Requisite Vote
|
82
|
Company Revolving Credit Facility
|
82
|
Company RSU
|
4
|
Company Share Plans
|
3
|
Company Shareholders
|
1
|
Company Shareholders Meetings
|
49
|
Company Shares
|
8
|
Company Term Credit Facility
|
83
|
Company Termination Payment
|
83
|
Compliant
|
83
|
Confidentiality Agreement
|
54
|
Consideration
|
3
|
Continuing Employees
|
55
|
Contract
|
83
|
Contribution Agreement
|
2
|
control
|
83
|
Court
|
83
|
Court Hearing
|
83
|
Court Meeting
|
83
|
Court Order
|
83
|
Customers
|
31
|
Debt Commitment Letter
|
34
|
Debt Financing
|
34
|
Debt Financing Source Related Party
|
77
|
Debt Financing Sources
|
34
|
Debt Offer
|
59
|
Debt Offer Documents
|
59
|
Debt Offers
|
59
|
Definitive Financing Agreements
|
60
|
DOJ
|
50
|
Effective Date
|
2
|
End Date
|
72
|
Environmental Laws
|
28
|
Equity Commitment Letter
|
2
|
ERISA
|
18
|
ERISA Affiliate
|
84
|
Exchange Act
|
11
|
Excluded Information
|
84
|
Excluded Shares
|
84
|
Financial Advisor
|
28
|
Financing
|
34
|
Financing Uses
|
35
|
FLSA
|
20
|
FTC
|
50
|
GAAP
|
84
|
General Meeting
|
84
|
Government Official
|
84
|
Governmental Entity
|
84
|
Guarantors
|
1
|
Hazardous Materials
|
28
|
Hedge Counterparty
|
67
|
HSR Act
|
11
|
Indemnified Party
|
56
|
Indenture
|
84
|
Information Privacy and Security Laws
|
84
|
Intellectual Property
|
85
|
IRS
|
18
|
IT Assets
|
85
|
JV Entity
|
7
|
JV Interest
|
7
|
knowledge
|
85
|
Law
|
85
|
Leased Real Property
|
86
|
Leases
|
86
|
Licensed Intellectual Property
|
25
|
Licenses
|
12
|
Lien
|
86
|
Marketing Period
|
86
|
Material Adverse Effect
|
87
|
Material Contract
|
16
|
Maximum Liability Amount
|
78
|
Multiemployer Plan
|
18
|
Non-U.S. Company Plans
|
19
|
OFAC
|
30
|
Options
|
3
|
Owned Intellectual Property
|
25
|
Owned Real Property
|
88
|
Parties
|
1
|
Party
|
1
|
Payoff Amount
|
58
|
Permitted Liens
|
88
|
Person
|
89
|
Personal Information
|
89
|
Privacy Policies
|
27
|
Proceeding
|
57
|
Proxy Statement
|
25
|
Real Property
|
89
|
Receiving Agent
|
6
|
Recommendation
|
47
|
Related Party
|
89
|
Required Information
|
89
|
Rollover Seller
|
90
|
Sanctioned Person
|
90
|
Scheduled Court Hearing Date
|
71
|
Scheme
|
90
|
SEC
|
12
|
SEC Reports
|
12
|
Securities Act
|
12
|
Senior Notes
|
90
|
Software
|
90
|
SOX
|
12
|
subsidiaries
|
90
|
subsidiary
|
90
|
Suppliers
|
30
|
Takeover Law
|
29
|
Tax Return
|
25
|
Taxes
|
24
|
Trade Laws
|
30
|
Transaction Documents
|
91
|
Transaction Litigation
|
66
|
Union
|
20
|
Voting
|
91
|
Warrant Documentation
|
91
|
Warrants
|
92
|
Willful Breach
|
92
|
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT,
dated as of December 15, 2020 (this “Agreement”), is entered into by and between Cardtronics plc, a public
limited company incorporated in England and Wales (registered no. 10057418) (the “Company”), and Catalyst Holdings
Limited, a private limited company incorporated in England and Wales (registered no. 13078098) (“BidCo” and,
together with the Company, the “Parties” and each, a “Party”).
RECITALS
WHEREAS, the Parties
each desire the acquisition of the Company by BidCo (the “Acquisition”) and, subject to the terms and conditions
set forth in this Agreement, have authorized the execution and delivery hereof;
WHEREAS, the board
of directors of the Company (the “Board”): (i) has determined that it is in the best interests of the Company
and the shareholders of the Company (the “Company Shareholders”) for the Company to enter into this Agreement
and the transactions contemplated herein (including the Acquisition) in accordance with the UK Companies Act 2006 (“CA
2006”); (ii) has approved the execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby (including the Acquisition); and (iii) intends to recommend the Acquisition to the Company
Shareholders;
WHEREAS, the board
of directors of BidCo: (i) has determined that it is in the best interests of BidCo and its shareholder for BidCo to enter
into this Agreement and the transactions contemplated herein (including the Acquisition) in accordance with CA 2006; and (ii) has
approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby
(including the Acquisition);
WHEREAS, the Parties
have agreed that the Acquisition will be implemented by means of the Scheme;
WHEREAS, the Scheme
will result in BidCo acquiring the entire issued and to be issued share capital of the Company (other than the Excluded Shares);
WHEREAS, each director
on the Board has entered into an irrevocable undertaking to vote (or, where applicable, cause to vote) in favor of the resolutions
relating to the Acquisition at the Court Meeting and the General Meeting;
WHEREAS, the Rollover
Seller has entered into an irrevocable undertaking to vote (or, where applicable, cause to vote) in favor of the resolutions relating
to the Acquisition at the General Meeting to the extent entitled to do so;
WHEREAS, concurrently
with the execution of this Agreement, Apollo Investment Fund IX, L.P., Apollo Overseas Partners (Delaware 892) IX, L.P., Apollo
Overseas Partners (Delaware) IX, L.P., Apollo Overseas Partners IX, L.P. and Apollo Overseas Partners (Lux) IX, SCSP (collectively,
the “Guarantors”) have entered into a limited guarantee, dated as of the date hereof, on the terms and subject
to the conditions set forth therein, guaranteeing certain of BidCo’s obligations under this Agreement (the “BidCo
Guarantee”);
WHEREAS, concurrently
with the execution of this Agreement, the Guarantors have entered into an equity commitment letter, dated as of the date of this
Agreement with BidCo (including all exhibits, schedules and annexes thereto, the “Equity Commitment Letter”);
WHEREAS, the Rollover
Seller is entering into, concurrently with the execution and delivery of this Agreement, a contribution agreement (the “Contribution
Agreement”) with BidCo pursuant to which, on the Effective Date, and subject to the terms and conditions contained in
the Contribution Agreement, the Rollover Seller will contribute to BidCo or its designee(s) a number of Company Shares in
exchange for a certain number of equity interests in BidCo or its Affiliate(s); and
WHEREAS, the Parties
have agreed to take certain steps to implement the Acquisition and wish to enter into this Agreement to record their respective
obligations relating to such matters;
NOW, THEREFORE, in
consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, the Parties agree
as follows:
Article I
THE
ACQUISITION
Section 1.1 The
Acquisition. Subject to the terms and conditions set forth in this Agreement, the approval by the Company Shareholders
at the Court Meeting and the General Meeting, and the sanction of the Scheme by the Court, upon the delivery of a copy of the
Court Order to the Registrar of Companies on the Effective Date, BidCo shall acquire the Company pursuant to the Scheme. The Acquisition
shall have the effects set forth in this Agreement and specified in Part 26 of CA 2006 and shall result in the acquisition
by BidCo of the entire issued and to be issued share capital of the Company, other than the Excluded Shares, by way of the Scheme.
Subject to the provisions of this Agreement, the Company shall use its reasonable best efforts to implement the Scheme in accordance
with the terms of this Agreement, and to consult with BidCo in relation to such implementation. Except as otherwise permitted
by this Agreement, the Company shall not, and shall cause each of its subsidiaries or Representatives not to knowingly take any
action that would reasonably be expected to result in the Acquisition being frustrated or in Company Shareholders being denied
the opportunity to decide on its merits.
Section 1.2 Effective
Date. Subject to the provisions of this Agreement, two (2) Business Days after the date the Court sanctions the
Scheme, or such other time as the Parties may agree in writing, the Company will deliver, or cause to be delivered, a copy of
the Court Order to the Registrar of Companies and the Acquisition shall become effective at the time when the Court Order has
been so delivered (the “Effective Date”).
Section 1.3 Directors,
Officers and Actions of the Board.
(a) On
the Effective Date, the Company shall deliver resignation letters (subject to the Scheme becoming effective in accordance with
its terms) in the agreed form from the directors and/or secretary (if any) of the Company and its applicable subsidiaries, identified
by BidCo to the Company in writing at least five (5) Business Days prior to the Effective Date.
(b) At
or prior to the Effective Date (subject to the Effective Date taking place), the Company shall cause that at a duly convened meeting
of the Board (or a duly appointed committee thereof) it will be resolved that:
(i) the
Acquisition and the Scheme will be approved for registration in the Company’s shareholder and other statutory registers;
(ii) any
resignations pursuant to Section 1.3(a) will be approved;
(iii) any
appointments of directors and/or secretary (if any) to the boards of the Company or its applicable subsidiaries, effective as of
the Effective Date, identified by BidCo to the Company in writing at least five (5) Business Days prior to the Effective Date,
will be approved; and
(iv) the
disposition of any Company Shares (including derivative securities) pursuant to the Acquisition by each individual who is subject
to Section 16 as an officer or director of the Company under the Exchange Act will be exempt under Rule 16b-3 promulgated
under the Exchange Act to the fullest extent available, as reasonably required under applicable Law.
Article II
EFFECT
OF THE ACQUISITION ON THE SHARE CAPITAL
OF THE COMPANY
Section 2.1 Acquisition
Consideration. BidCo hereby covenants that, in accordance with the terms and conditions of the Scheme: (i) on
or prior to the Effective Date, BidCo shall deposit, or shall cause to be deposited, with the Receiving Agent (as defined below)
for the benefit of the Company Shareholders a cash amount in immediately available funds equal to $35.00 in cash per share subject
to the Scheme (being all Company Shares minus the Excluded Shares) (the “Consideration”); provided that BidCo
and the Company shall work together to utilize available cash of the Company and its subsidiaries to fund a portion of the Consideration
to be deposited with the Receiving Agent; and (ii) after the Effective Date, BidCo shall cause, subject to and in accordance
with Section 2.2, the payment by the Company of all amounts payable to holders of awards pursuant to Section 2.2
(the amounts set forth in the foregoing clauses (i) and (ii) together, in the aggregate, the “Cash Consideration”).
Section 2.2 Treatment
of Options, Company RSUs and Company PSUs.
(a) Options.
Immediately prior to the Effective Date, each then-outstanding option to purchase Company Shares (each, an “Option”)
granted under any director or employee stock option or compensation plan or arrangement of the Company (collectively, the “Company
Share Plans”) prior to calendar year 2021, whether or not vested, shall, automatically and without any action on the
part of the holder thereof, be cancelled and converted into the right to receive, and the Company shall pay to each former holder
of any such Option an amount in cash equal to the product of (i) the excess, if any, of the Consideration over the applicable
exercise price per Company Share of such Option and (ii) the number of Company Shares subject to such Option, payable (without
any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable
(but no later than the first payroll date) after the Effective Date. Each Option outstanding immediately prior to the Effective
Date that was granted in calendar year 2021 (the “2021 Option”) shall, automatically and without any action
on the part of the holder thereof, be cancelled and converted into the right to receive an amount in cash (the “Option
Cash Out Award”) equal to the product of (i) the excess, if any, of the Consideration over the applicable exercise
price per Company Share of such 2021 Option and (ii) the number of Company Shares subject to such 2021 Option, payable (without
any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable
(but no later than the first payroll date) after each date that such 2021 Option would have otherwise vested and become exercisable
in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date; provided,
that if the employment or service of the grantee of such Option Cash Out Award is terminated prior to any vesting date by BidCo
or one of its Affiliates without Cause or as a result of death or Disability (each as defined in the award agreement pursuant to
which the 2021 Option was granted, which definitions shall be the same as the definitions in the Option award agreements evidencing
the grants made in calendar year 2020), then the Option Cash Out Award shall fully vest as of the date of such termination of employment
or service and be paid within thirty days following such termination. For the avoidance of doubt, any Option which has a per Company
Share exercise price that is greater than or equal to the Consideration shall be cancelled on the Effective Date for no consideration
or payment.
(b) Immediately
prior to the Effective Date, each then-outstanding award for restricted stock units with respect to Company Shares that vests solely
based on the passage of time (each, a “Company RSU”) granted under any Company Share Plan prior to calendar
year 2021, whether or not vested, shall, automatically and without any action on the part of the holder thereof, be cancelled and
converted into the right to receive, and the Company shall pay to each former holder of any such award of Company RSUs an amount
in cash equal to the product of (i) the Consideration and (ii) the number of Company Shares subject to such Company RSU
award, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as
reasonably practicable (but no later than the first payroll date) after the Effective Date (or
at such later date as required under Section 409A of the Code). Each award of
Company RSUs outstanding immediately prior to the Effective Date that was granted in calendar year 2021 (the “2021 Company
RSU”) shall, automatically and without any required action on the part of the holder thereof, be cancelled and
converted into the right to receive an amount in cash (the “RSU Cash Out Award”) equal to the product of (i) the
Consideration and (ii) the number of Company Shares subject to such award of 2021 Company RSUs, payable (without any crediting
of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later
than the first payroll date) after each date that such 2021 Company RSU would have otherwise vested in accordance with its terms
but only if such conditions to vesting are satisfied prior to each such vesting date; provided, that if the employment or
service of the grantee of such RSU Cash Out Award is terminated prior to any vesting date by BidCo or one of its Affiliates without
Cause or as a result of death or Disability (each as defined in the award agreement pursuant to which the 2021 Company RSU was
granted, which definitions shall be the same as the definitions in the Company RSU award agreements evidencing the grants made
in calendar year 2020), then the RSU Cash Out Award shall fully vest as of the date of such termination of employment or service
and be paid within thirty (30) days following such termination.
(c) Immediately
prior to the Effective Date, each then-outstanding award for restricted stock units with respect to Company Shares that vests based
on both performance and the passage of time (each, a “Company PSU”) granted under any Company Share Plan prior
to calendar year 2021, whether or not vested, shall, automatically and without any action on the part of the holder thereof, be
cancelled and converted into the right to receive, and the Company shall pay to each former holder of any such award of Company
PSUs an amount in cash equal to the product of (i) the Consideration and (ii) the number of Company Shares subject to
such Company PSU award (with such number of Company Shares based on the greater of the target level achievement and the actual
level of achievement of any performance goals as determined by the Board immediately prior to the Effective Date based on pro-rated
performance goals to account for any shortened performance period), payable (without any crediting of interest for the period from
the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after
the Effective Date (or at such later date as required under Section 409A of the Code).
Each award of Company PSUs outstanding immediately prior to the Effective Date that was granted
in calendar year 2021 (the “2021 Company PSU”) shall, automatically and without any required action on
the part of the holder thereof, be cancelled and converted into the right to receive an amount in cash (the “PSU Cash Out
Award”) equal to the product of (i) the Consideration and (ii) the number of Company Shares subject to such 2021
Company PSU (with such number of Company Shares based on the target level achievement), payable (without any crediting of interest
for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first
payroll date) after each date that such 2021 Company PSU would have otherwise vested in accordance with its terms but only if such
conditions to vesting are satisfied prior to each such vesting date (excluding any performance conditions); provided, that
if the employment or service of the grantee of such PSU Cash Out Award is terminated prior to each such vesting date by BidCo or
one of its Affiliates without Cause or as a result of death or Disability (each as defined in the award agreement pursuant to which
the 2021 Company PSU was granted, which definitions shall be the same as the definitions in the Company PSU award agreements evidencing
the grants of Company PSUs made in calendar year 2020), then the PSU Cash Out Award shall fully vest as of the date of such termination
of employment or service and be paid within thirty (30) days following such termination.
(d) The
Company shall pay the holders of Options, Company RSUs and Company PSUs the cash payments described in this Section 2.2
through the Company’s payroll system (if applicable) as described in Section 2.2(a), Section 2.2(b) and
Section 2.2(c), respectively.
(e) Corporate
Actions. On or prior to the Effective Date, the Company, the Board and the compensation committee of the Board, as applicable,
shall adopt any resolutions and take all such lawful actions as may be reasonably necessary to provide for and give effect to the
transactions contemplated by this Section 2.2. The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement shall not provide any holder of an award or right under any Company Share Plan
with the right to acquire any capital stock or other equity interest in the Company, BidCo or any of their respective Affiliates.
Section 2.3 Payment
of Consideration.
(a) Receiving
Agent. Prior to the Effective Date, BidCo shall enter into an agreement in form and substance reasonably acceptable to the
Company with a paying agent selected by BidCo with the Company’s prior approval, which approval shall not be unreasonably
conditioned, withheld or delayed, to act as agent for the Company Shareholders in connection with the Acquisition (the “Receiving
Agent”) to receive payment of the Consideration to which the Company Shareholders shall become entitled. BidCo shall
pay all costs, fees and expenses incurred in connection with the retention and engagement of the Receiving Agent.
(b) Payment
Procedures. The Consideration to which each Company Shareholder is entitled (less any required deductions as provided in Section 2.4)
will be transferred to such Person by the Receiving Agent from the funds received by BidCo pursuant to the agreement entered into
between BidCo and the Receiving Agent with respect to such role hereunder (on customary terms) and in accordance with the Scheme,
with all funds to be dispatched as soon as possible and, in any event, not later than the fourteenth (14th) day following the Effective
Date to the Person entitled to it electronically or at the address as appearing in the register of members of the Company at the
Voting Record Time and made in U.S. dollars. As of the Voting Record Time, each holding of Company Shares credited to any stock
account in the Depository Trust Company (“DTC”) will be disabled and all Company Shares will be removed from
DTC in due course. None of the Company, BidCo, any nominee(s) of BidCo or any of their respective agents shall be responsible
for any loss or delay in the transmission of payments sent by the Receiving Agent as described above, and such payments shall be
sent at the risk of the Person entitled to it.
(c) Special
Payment Procedures for DTC. Prior to the Effective Date, BidCo and the Company shall cooperate to establish procedures with
the Receiving Agent and DTC to ensure that the Company Shares held of record by DTC or its nominee will receive payment in immediately
available funds in accordance with the Scheme and any other applicable Laws.
Section 2.4 Withholding
Rights. Each of the Receiving Agent, the Company and BidCo shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of Company Shares, Options, Company RSUs or Company PSUs such amounts
as it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable state,
local or foreign Tax Law. To the extent that amounts are so deducted or withheld by the Receiving Agent, the Company or BidCo,
as the case may be, such deducted or withheld amounts (i) shall be remitted by BidCo or the Company, as applicable, to the
applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder
of Company Shares, Options, Company RSUs or Company PSUs (as the case may be) in respect of which such deduction and withholding
was made by the Receiving Agent, the Company or BidCo, as the case may be. Prior to making any deduction or withholding with respect
to non-compensatory payments, the withholding party will notify the Person in respect of such deduction or withholding, provide
such Person a reasonable opportunity to deliver documentation to eliminate or reduce any such required deduction or withholding
and otherwise use its reasonable best efforts to cooperate with such Person to minimize or eliminate any such deduction or withholding.
Article III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company hereby
represents and warrants to BidCo that, except (i) as disclosed in the SEC Reports filed with, or furnished to, the SEC on
or after January 1, 2019 and not less than five (5) Business Days prior to the date of this Agreement and only as and
to the extent disclosed therein (and excluding any disclosures set forth in the SEC Reports (x) under the captions “Risk
Factors,” “Forward-Looking Statements” or “qualitative or quantitative disclosure about market risk”
and (y) in any other section relating to forward-looking statements to the extent they are cautionary, protective, predictive
or forward-looking in nature), it being understood that any matter disclosed in such filings shall not be deemed disclosed for
purposes of Section 3.1, Section 3.2, Section 3.3, Section 3.4 or Section 3.20
of this Agreement or (ii) as set forth on the corresponding sections or subsections of the disclosure letter delivered to
BidCo by the Company concurrently with entering into this Agreement (the “Company Disclosure Letter”), it being
agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall also be deemed disclosure
with respect to any other section or subsection of this Agreement to which the relevance of such item is readily apparent on the
face of such disclosure:
Section 3.1 Organization
and Qualification; Subsidiaries.
(a) Each
of the Company and each subsidiary of the Company is a legal entity duly organized, validly existing and, to the extent such concept
is applicable, in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or
similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted
and is qualified to do business and, to the extent such concept is applicable, is in good standing as a foreign corporation or
other legal entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or present conduct
of its business requires such qualification, except in each case where the failure to be so qualified or, to the extent such concept
is applicable, in good standing, would not have, or reasonably be expected to have, a Material Adverse Effect.
(b) Section 3.1(b) of
the Company Disclosure Letter sets forth (x) a true, correct and complete list of each of the Company’s subsidiaries,
indicating its jurisdiction of organization and the ownership interest of the Company in each such subsidiary, as well as the ownership
interest of any other Person or Persons in each such subsidiary and (y) a true, correct and complete list of each other corporation,
partnership, limited liability company or other Person that is not a subsidiary but in which the Company, directly or indirectly,
holds an equity interest (each such Person in this clause (y), a “JV Entity”), the ownership interest of the
Company in each JV Entity, the jurisdiction of organization of each such JV Entity and, to the knowledge of the Company, as of
the date hereof, the ownership interest of any other Person or Persons in each such JV Entity.
(c) All
the outstanding shares of share capital or voting securities of, or other equity interests in, each of the Company’s subsidiaries
have been validly issued and are owned, directly or indirectly, by the Company, by another subsidiary of the Company or by the
Company and another subsidiary of the Company, free and clear of all Liens, and free of any other restriction (including any restriction
on the right to vote, sell or otherwise transfer or dispose of such share capital, voting securities or other equity interests),
except for such transfer restrictions of general applicability as may be provided under the Securities Act and other applicable
securities Laws, and Liens that will be released on or prior to the Effective Date, and are validly issued, fully paid, non-assessable
and free of preemptive rights. No such subsidiary is bound by any outstanding subscriptions, options, warrants, calls, commitments
or Contracts of any character calling for the purchase or issuance of shares of share capital or other equity interests of such
subsidiary or any securities representing the right to purchase or otherwise receive any shares of share capital or any other equity
security of such subsidiary.
(d) Except
as set forth in Section 3.1(b) of the Company Disclosure Letter, neither the Company nor any subsidiary of the
Company owns, directly or indirectly, any share capital or voting securities of, or other equity interests in, or has any direct
or indirect equity participation or similar interest in, or any interest convertible into or exchangeable or exercisable for, any
share capital or voting securities of, or other equity interests in, any firm, corporation, partnership, company, limited liability
company, trust, joint venture, association or other entity, nor is the Company or any subsidiary of the Company under any current
or prospective obligation to form or participate in, provide funds, make any loan, capital contribution, guarantee, credit enhancement
or other investment in, or assume any liability or obligation to any Person (other than routine intercompany cash management practices
among wholly owned subsidiaries of the Company).
Section 3.2 Organizational
Documents. The Company has made available to BidCo, prior to the date hereof, true, correct and complete copies of
the certificate of incorporation, as amended to date (the “Certificate of Incorporation”), and the articles
of association (the “Articles of Association”), of the Company, and equivalent organizational or governing
documents of all of the Company’s subsidiaries. Each of the foregoing documents is in full force and effect, and neither
the Company nor any of its subsidiaries is in violation of any provision of the foregoing documents.
Section 3.3 Capitalization.
The authorized share capital of the Company consists of 62,000,000 A ordinary shares, nominal value $0.01 per share (the “Company
Shares”).
(a) As
of December 13, 2020 (the “Capitalization Date”):
(i) no
preferred shares of the Company were authorized, issued or outstanding;
(ii) 44,490,037
Company Shares were issued and outstanding and no Company Shares were held by the Company in its treasury;
(iii) there
were (A) 584,465 Company Shares underlying outstanding Options, (B) 614,003 Company Shares underlying outstanding Company
RSUs and (C) 1,298,217 Company Shares underlying outstanding Company PSUs (assuming performance achieved at target) and 2,031,432
Company Shares underlying outstanding Company PSUs (assuming performance achieved at and maximum numbers); and
(iv) a
total of 2,207,623 Warrants are outstanding with a strike price of $73.29.
(b) From
the close of business on the Capitalization Date until the date of this Agreement, no options to purchase Company Shares have been
granted and no Company Shares have been issued, except for Company Shares issued pursuant to the exercise or vesting of Options
or the vesting or settlement of Company RSUs or Company PSUs, in each case in accordance with the terms of the Company Share Plans.
Section 3.3(b) of the Company Disclosure Letter sets forth, as of the Capitalization Date, a list of all holders
of award agreements issued under the Company Share Plan and, with respect to each, the type of award, the date of grant, the number
of Company Shares subject to such award, the accrued but unpaid dividends or dividend equivalent units corresponding to such awards
and, with respect to the Options, the price per share at which such Option may be exercised.
(c) All
outstanding Company Shares are duly authorized, validly issued, fully paid, and are not subject to and were not issued in violation
of any pre-emptive or similar rights, purchase options, call or right of first refusal or similar right. All Company Shares that
are subject to issuance in Section 3.3(a), upon issuance prior to the Effective Date in accordance with the terms and
subject to the conditions specified in the instruments under which they are issuable (x) are, or upon issuance will be, duly
authorized and validly issued and fully paid and free of preemptive rights and (y) are, to the extent owned directly or indirectly
by the Company, owned free and clear of any Liens and transfer restrictions, except for such transfer restrictions of general applicability
as may be provided under the Securities Act and other applicable securities Laws and Liens that will be released on or prior to
the Effective Date. Each of the outstanding Company Shares or other equity interests of each of the Company’s subsidiaries
is duly authorized, validly issued, fully paid and all such shares or other equity interests are owned by the Company or a subsidiary
of the Company and are owned free and clear of all Liens, agreements, transfer restrictions, limitations in voting rights, charges
or other encumbrances of any nature whatsoever, except for such transfer restrictions of general applicability as may be provided
under the Securities Act and other applicable securities Laws and Liens that will be released on or prior to the Effective Date.
(d) Except
as set forth in Section 3.3(a) or in Section 3.3(b) of the Company Disclosure Letter, there are
no outstanding subscriptions, options, warrants, calls, puts, convertible securities, exchangeable securities or other similar
rights, agreements or commitments to which the Company or any of its subsidiaries is a party (i) obligating the Company or
any of its subsidiaries to (A) issue, transfer, exchange, sell or register for sale any shares of share capital or other equity
interests, including restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value
rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based,
directly or indirectly, on the value or price of, any share capital or other interest of the Company or any subsidiary of the Company
or securities convertible into or exchangeable for such shares or interests, (B) grant, extend or enter into any such subscription,
option, warrant, call, put, convertible securities, exchangeable securities or other similar right, agreement or commitment relating
to the share capital or other equity interests of the Company or any of its subsidiaries or (C) redeem or otherwise acquire
any such shares of share capital or other equity interests or (ii) granting any preemptive, antidilutive, rights of first
refusal or similar rights with respect to any security issued by the Company or its subsidiaries. Neither the Company nor any of
its subsidiaries has outstanding any bonds, debentures, notes or other indebtedness, the holders of which have the right to vote
(or which are convertible or exchangeable into or exercisable for securities having the right to vote) with the Company Shareholders
on any matter. There are no voting trusts or other agreements or understandings to which the Company or any of its subsidiaries
is a party with respect to the voting or registration of the share capital or other equity interest of the Company or any of its
subsidiaries. The Company has not issued or repurchased any shares of its share capital (other than in connection with the exercise,
vesting or settlement of any Options, Company RSUs or Company PSUs in accordance with their respective terms) or, other than as
disclosed in Section 3.3(a) or Section 3.3(b) of the Company Disclosure Letter, or as expressly
permitted pursuant to Section 5.1(b)(xiv), granted any awards to acquire Company Shares under any equity incentive
plan of the Company which remain outstanding.
(e) The
Company has made available to BidCo true, correct and complete copies of all proxies, powers of attorney, custodial agreements
or other commitments or agreements that grant the Company a voting proxy with respect to its non-wholly owned subsidiaries. There
are no voting trusts, proxies or similar agreements, arrangements or commitments to which the Company or any of its subsidiaries
is a party with respect to the voting of any shares of share capital of the Company or any of its subsidiaries. Except for awards
to acquire Company Shares under any equity incentive plan of the Company and its subsidiaries, neither the Company nor any of its
subsidiaries has outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which
are convertible into or exercisable for securities having the right to vote) with the Company Shareholders or the holders of voting
securities of the Company on any matter.
(f) All
dividends and distributions (including dividend equivalents) on shares of the share capital of the Company or other securities
of the Company or any of its subsidiaries that have been declared or authorized prior to the date hereof have been paid in full.
(g) There
are no voting trusts, “poison pill” or other similar “Company Shareholder rights plans” or other agreements,
understandings or Contracts to which the Company or any of its subsidiaries is a party with respect to the voting of the share
capital or other equity interest of the Company or any of its subsidiaries.
Section 3.4 Authority.
The Company has all requisite corporate power and authority, and has taken all corporate action necessary, to execute and deliver
this Agreement, to perform (or cause to be performed) its obligations hereunder and to consummate the Acquisition and the other
transactions contemplated hereby, subject only to the Company Requisite Vote. This Agreement has been duly and validly executed
and delivered by the Company and, assuming the due authorization, execution and delivery hereof by BidCo, constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects
of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or
affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at
Law) and any implied covenant of good faith and fair dealing (the “Bankruptcy and Equity Exception”). The Board,
at a duly called and held meeting, has (i) determined that this Agreement and the transactions contemplated hereby, including
the Acquisition, are in the best interests of the Company and the Company Shareholders, (ii) approved the execution and performance
of this Agreement and the consummation of the transactions contemplated hereby, including the Acquisition, (iii) resolved
to make the Recommendation and (iv) directed that this Agreement be submitted to the Company Shareholders at the Company
Shareholders Meetings for their adoption and approval. The only vote or approval of the holders of any class or series of capital
stock of the Company or any of its subsidiaries which is required to adopt and approve this Agreement and the transactions contemplated
hereby, including the Acquisition, is the Company Requisite Vote and except for the Company Requisite Vote, no other corporate
proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby, including
the Acquisition.
Section 3.5 No
Conflict; Required Filings and Consents.
(a) Except
as set forth in Section 3.5(a) of the Company Disclosure Letter, the execution, delivery and performance of this
Agreement by the Company, and the consummation of the Acquisition and the other transactions contemplated hereby do not and will
not (i) breach or violate the Articles of Association or other organizational or governing documents of the Company or any
of its subsidiaries, (ii) assuming that all consents, approvals and authorizations contemplated by subsection (b) below
have been obtained and that all filings described in such clauses have been made, conflict with or violate any provision of any
Law or any rule or regulation applicable to the Company or any of its subsidiaries or by which its or any of their respective
properties or assets are bound or (iii) result in any breach or violation of, constitute a default or require a consent (with
notice or lapse of time, or both) or result in the loss of a benefit under, or give rise to any right of termination, cancellation,
amendment or acceleration of, or result in the creation of a Lien (except a Permitted Lien) on any of the assets of the Company
pursuant to, any Contract or Lease to which the Company or any of its subsidiaries is a party or to which their respective properties
or assets are bound, except, in the case of clauses (ii) and (iii), for any such conflict, violation, breach, default, loss,
right or other occurrence which would not have, or reasonably be expected to have, a Material Adverse Effect.
(b) The
execution, delivery and performance of this Agreement by the Company and the consummation of the Acquisition and the other transactions
contemplated hereby by the Company do not and will not require any consent, approval, authorization, declaration or permit of,
action by, filing with or notification to, any Governmental Entity except for (i) compliance with the applicable requirements
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the rules and regulations promulgated
thereunder (including the filing of the Proxy Statement and the Circular), state securities, Takeover Laws and “blue sky”
Laws, and CA 2006, (ii) compliance with and filings or notifications by the Company under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”)
and the Antitrust and Foreign Investment Laws of Australia, Canada, South Africa, New Zealand and the European Union, (iii) the
applicable rules, regulations and requirements of Nasdaq, (iv) the Company Requisite Vote and the filing of the Court Order
with the Registrar of Companies of England and Wales and (v) any such consent, approval, authorization, permit, action, filing
or notification the failure of which to make or obtain would not have, or reasonably be expected to have, a Material Adverse Effect.
Section 3.6 Compliance
with Law; Licenses.
(a) The
Company and each of its subsidiaries are not, and since January 1, 2018 (the “Applicable Date”) have not
been, in material violation of, and are, and since the Applicable Date have been, in compliance with, any Law applicable to the
Company or any of its subsidiaries or any of their respective assets, businesses or properties, except for instances of non-compliance
that would not have, or reasonably be expected to have, a Material Adverse Effect.
(b) The
Company and each of its subsidiaries hold all permits, licenses, authorizations, exemptions, exceptions, certificates, orders,
consents, grants, approvals and franchises from Governmental Entities required for the Company and its subsidiaries to conduct
their respective businesses and own, lease and operate their respective assets and properties as they are now being conducted (the
“Licenses”) and all Licenses are in full force and effect, in each case except as would not have, or reasonably
be expected to have, a Material Adverse Effect. Since the Applicable Date, none of the Company or any of its subsidiaries has received
any written notice from any Governmental Entity threatening to suspend, revoke, withdraw or modify any of the Licenses, except
for any of the Licenses the absence of which would not have, or reasonably be expected to have, a Material Adverse Effect. The
Company and its subsidiaries are, and since the Applicable Date have been, in compliance with the terms and conditions of the Licenses,
except for any such Licenses the absence of which would not have, or reasonably be expected to have, a Material Adverse Effect.
No suspension or cancellation of any of the Licenses is pending or, to the knowledge of the Company, threatened, except for any
such Licenses the absence of which would not have, or reasonably be expected to have, a Material Adverse Effect. Section 3.6(b) of
the Company Disclosure Letter sets forth as of the date hereof a list of all of the Licenses.
(c) The
consummation of the transactions contemplated hereby shall not result in any conflict, default or violation of any Licenses, except
for any such Licenses the absence of which would not have, or reasonably be expected to have, a Material Adverse Effect.
Section 3.7 SEC
Filings; Financial Statements; Undisclosed Liabilities.
(a) The
Company has filed or furnished on a timely basis all registration statements, forms, reports, statements, certifications and other
documents (including all exhibits and other information incorporated therein, amendments and supplements thereto) in each case
required to be filed or furnished on or prior to the date hereof by it with the U.S. Securities and Exchange Commission (the “SEC”)
since the Applicable Date through the date hereof (all such registration statements, forms, reports, statements, certificates and
other documents filed since the Applicable Date, including all exhibits and other information incorporated therein, amendments
and supplements thereto, collectively, the “SEC Reports”). As of their respective effective dates (in the case
of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act (as defined below)) and
as of their respective SEC filing dates (in the case of all other SEC Reports), or, if amended or superseded by a subsequent filing
made prior to the date of this Agreement, as of the date of the last such amendment or superseding filing prior to the date of
this Agreement, the SEC Reports (i) complied in all material respects with the applicable requirements of the Securities Act
of 1933, as amended (the “Securities Act”), the Exchange Act and the Sarbanes-Oxley Act of 2002 (“SOX”),
as the case may be, and the applicable rules and regulations promulgated thereunder and (ii) were prepared in all material
respects in accordance with the applicable requirements of the Securities Act, the Exchange Act, SOX and other applicable Law,
each as in effect on the date of any such filing. As of the time of filing with the SEC (or, if amended prior to the date of this
Agreement, as of the date of such amendment), none of the SEC Reports contained, when filed, any untrue statement of a material
fact or omitted to state any material fact required to be stated or incorporated by reference therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent that
the information in such SEC Reports has been amended or superseded by a later SEC Report filed prior to the date of this Agreement.
There are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has been no material
correspondence between the SEC and the Company since the Applicable Date that is not set forth in the SEC Reports or that has not
otherwise been disclosed to BidCo prior to the date hereof. None of the SEC Reports is the subject of ongoing SEC review and there
are no inquiries or inspections by the SEC regarding the accounting practices of the Company. No subsidiary of the Company is subject
to the periodic reporting requirements of the Exchange Act or is otherwise required to file any periodic forms, reports, schedules,
statements or other documents with the SEC. Since the Applicable Date, subject to any applicable grace period, the Company has
been in compliance in all material respects with the applicable listing and corporate governance rules and regulations of
Nasdaq.
(b) True,
correct and complete copies of the audited consolidated financial statements of the Company (including all notes thereto) and its
subsidiaries included in the Company’s Annual Report on Form 10-K for the fiscal years ended December 31, 2017,
December 31, 2018 and December 31, 2019 (the “Audited Financial Statements”) included in the SEC Reports
and filed with the SEC complied in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial
position of the Company and its subsidiaries at the respective dates thereof (taking into account the notes thereto) and the consolidated
statements of operations, cash flows and Company Shareholders’ equity for the periods indicated. The unaudited consolidated
financial statements of the Company (including any related notes thereto) for all interim periods included in the Company’s
quarterly reports on Form 10-Q filed with the SEC since the Applicable Date and included in the SEC Reports complied in all
material respects with the applicable accounting requirements and the rules and regulations of the SEC, have been prepared
in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be specifically indicated
in the notes thereto and except for the absence of certain footnote disclosures (none of which if presented would materially differ
from those presented in the Audited Financial Statements) and normal and recurring year-end adjustments that are not material as
permitted by GAAP) and fairly present in all material respects the consolidated financial position of the Company and its subsidiaries
at the respective dates thereof (taking into account the notes thereto) and the consolidated statements of operations and cash
flows for the periods indicated (subject to normal and recurring year-end adjustments as permitted by GAAP, none of which would
be material individually or in the aggregate). Since January 1, 2018, there has been no material change in the Company’s
accounting methods or principles that would be required to be disclosed in the Company’s financial statements in accordance
with GAAP, except as described in the notes thereto. From the Applicable Date through the date hereof, neither the Company nor
any Representative of the Company has received any material complaint, allegation, assertion or claim, regarding deficiencies in
the accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting controls.
(c) The
Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such
terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rules 13a-15
and 15d-15 of the Exchange Act. Such disclosure controls and procedures are designed and effective to ensure that material information
required to be disclosed in the Company’s periodic reports filed or submitted under the Exchange Act is recorded, processed,
summarized and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with
the SEC and other public disclosure documents. The Company is, and has been since the Applicable Date, in compliance in all material
respects with the applicable provisions of SOX and the applicable listing and corporate governance rules and regulations of
Nasdaq. Neither the Company nor any of its subsidiaries has outstanding, or has arranged any outstanding “extensions of credit”
to directors or executive officers of the Company prohibited by Section 402 of SOX. Since the Applicable Date through the
date hereof, the Company has not identified (i) any material weakness or significant deficiency in the design or operation
of internal control over financial reporting which is reasonably likely to adversely affect the Company’s ability to record,
process, summarize and report financial information or (ii) any fraud or allegation of fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
The principal executive officer of the Company and the principal financial officer of the Company each has made all certifications
required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of SOX, as applicable, with respect to
the SEC Reports, and the statements contained in such certifications were accurate as of the date they were made. For purposes
of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings
given to such terms in SOX.
(d) Except
(i) as disclosed, reflected, accrued or specifically and adequately reserved against in the consolidated balance sheet of
the Company and its subsidiaries dated September 30, 2020 included in the SEC Reports, (ii) for liabilities or obligations
which have been discharged or paid in full prior to the date of this Agreement, (iii) for liabilities or obligations expressly
contemplated by this Agreement and (iv) liabilities or obligations that would not have, or reasonably be expected to have,
a Material Adverse Effect, neither the Company nor any of its subsidiaries has any liabilities or obligations (whether accrued,
contingent, determined, absolute or otherwise, whether due or that may become due) of a nature required by GAAP to be reflected
in a consolidated balance sheet or disclosed in the notes thereto. There are no unconsolidated subsidiaries of the Company. Neither
the Company nor any of its subsidiaries is a party to, or has any commitment to become a party to, any “off balance sheet
arrangement” within the meaning of Item 303 of Regulation S-K promulgated under the Securities Act.
Section 3.8 Contracts.
(a) Except
(x) for this Agreement, (y) for a Company Plan or the Company Share Plans and (z) as set forth in Section 3.8(a) of
the Company Disclosure Letter, neither the Company nor any of its subsidiaries is party to or bound by, or has any property or
asset bound by, any Contract, as of the date of this Agreement, that:
(i) would
be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K
of the Securities Act or disclosed by the Company on a Current Report on Form 8-K, Annual Report on Form 10-K or Quarterly
Report on Form 10-Q that has not been filed or incorporated by reference in the SEC Reports;
(ii) contains
any covenant that materially restricts the ability of the Company or any of its subsidiaries, taken as a whole, to (A) engage
in any business, (B) compete in any business or with any Person, (C) operate in any geographic area or (D) solicit
or hire any employee or consultant other than pursuant to non-disclosure agreements entered into in the ordinary course of business;
(iii) is
a joint venture, partnership, limited liability or other similar agreement or arrangement or Contract relating to the formation,
creation, operation, management or control of any partnership, joint venture, limited liability company or other similar agreements
or arrangements or Contracts;
(iv) is
an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or other Contract (including any
swap or hedge agreements) relating to indebtedness of the Company or any of its subsidiaries (for the avoidance of doubt, other
than Contracts related to vault cash arrangements), in each case, in excess of $1,000,000;
(v) is
a Contract related to vault cash arrangements with any financial institution;
(vi) is
a settlement, conciliation or similar Contract with any Governmental Entity;
(vii) requires
the Company or any of its subsidiaries, directly or indirectly, to make any advance, loan, extension of credit or capital contribution
to, or other investment in, any Person (other than the Company or any of its wholly owned subsidiaries) in any such case which
is in excess of $500,000;
(viii) prohibits
the payment of dividends or distributions in respect of the share capital of the Company or any of its subsidiaries, prohibits
the pledging of the share capital of the Company or any subsidiary of the Company or prohibits the issuance of guarantees by the
Company or by any subsidiary of the Company;
(ix) (A) contains
“most favored nation” pricing provisions which impose obligations on the Company or any of its subsidiaries with any
third party, or (B) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights
to any Person other than the Company or any of its subsidiaries;
(x) has
resulted in payments by the Company and its subsidiaries to vendors of more than $2,000,000 in the aggregate for the 12 month period
ending June 30, 2020 (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase
of inventory and/or equipment in the ordinary course of business or Leases);
(xi) has
given rise to aggregate revenue (including termination fees) by the Company and its subsidiaries under such Contract(s) of
more than $2,000,000 during fiscal year 2019;
(xii) with
respect to any acquisition and divestiture pursuant to which the Company or any of its subsidiaries has continuing indemnification,
guarantee, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result
in payments in excess of $2,000,000;
(xiii) involving
the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or share capital or other equity interests
for aggregate consideration under such Contract of at least $1,000,000 individually, or $2,000,000 in the aggregate;
(xiv) is
between the Company or any of its subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially
owning five percent (5%) or more of the outstanding Company Shares, on the other hand, except for any Company Plan and any Contracts
entered into on arm’s-length terms in the ordinary course of business;
(xv) requires
a consent to or otherwise contains a provision relating to a “change of control” or that would or could reasonably
be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Acquisition;
(xvi) involves
the payment of royalties to, or receipt of royalties from, any Person (other than the Company or any of its subsidiaries) of more
than $1,000,000 in the aggregate pursuant to a license that is material to the Company and its subsidiaries taken as a whole; or
(xvii) is
a Contract pursuant to which any third party grants to the Company or any of its subsidiaries a license, right or covenant not
to sue with respect to any Licensed Intellectual Property that is material to the Company and its subsidiaries taken as a whole
(other than (1) intercompany licenses between the Company and any of its subsidiaries, (2) licenses for Open Source Software
or (3) licenses for Software that is generally commercially available on standard terms for less than $300,000 (based on the
dollar value of expenditures from fiscal year 2019)).
Each Contract required
to be set forth in Section 3.8(a) of the Company Disclosure Letter is referred to herein as a “Material
Contract”. For purposes of this Section 3.8(a), “Contract” shall mean a Contract, group or series
of related Contracts and shall require disclosure thereof.
(b) Each
of the Material Contracts is valid and binding on the Company and each of its subsidiaries party thereto and, to the knowledge
of the Company, each other party thereto, and is in full force and effect, enforceable in accordance with its terms, except that
such enforcement is subject to the Bankruptcy and Equity Exception. Neither the Company nor any of its subsidiaries has received
written notice from any other party to a Material Contract that such other party intends to terminate, not renew, or renegotiate
in any material respects the terms of any such Material Contract (except in accordance with the terms thereof). Neither the Company
nor any of its subsidiaries is in breach of or default under any Material Contract and no event or condition has occurred that
constitutes or, with the lapse of time or the giving of notice or both, would constitute, a default thereunder by the Company or
any of its subsidiaries or any other party thereto, except in each case for such violations, breaches, events or conditions that
would not have, or reasonably be expected to have, a Material Adverse Effect. To the knowledge of the Company, no other party to
any Material Contract is in breach of or default under such Material Contract and no event or condition has occurred that constitutes
or, with the lapse of time or the giving of notice or both, would constitute, a default thereunder by such other party. Neither
the Company nor any of its subsidiaries has received written notice of any breach or default or any such event or condition described
in the two (2) preceding sentences with respect to any Material Contract. The Company has made available to BidCo true, correct
and complete copies of all Material Contracts.
Section 3.9 Absence
of Certain Changes or Events. Except as contemplated by this Agreement, since December 31, 2019 through the date
of this Agreement, (a) there has not been a Material Adverse Effect, (b) other than the COVID-19 Response, (i) the
business of the Company and its subsidiaries has been carried on and conducted in the ordinary course of business and (ii) none
of the Company or any of its subsidiaries has taken any action that has had, or would reasonably be expected to have, a Material
Adverse Effect and (c) none of the Company or any of its subsidiaries has taken or agreed to take any action that, if taken
after the date hereof, would require the consent of BidCo pursuant to any of clauses (i), (iv), (x), (xiii),
(xv), (xvi), (xviii), (xxii) or (xxviii) of Section 5.1(b).
Section 3.10 Absence
of Litigation. There are no suits, claims, actions, proceedings or arbitrations (each, an “Action”)
pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries or any of their respective
assets or properties at Law or in equity, as of the date hereof (i) with a potential liability of more than $500,000, (ii) that
would reasonably be expected to result in injunctive relief against the Company or any of its subsidiaries or (iii) that
would reasonably be expected to result in criminal sanctions against the Company or any of its subsidiaries. Neither the Company
nor any of its subsidiaries nor any of their respective material properties is or is subject to any order, writ, judgment, injunction,
decree or award as of the date hereof. There are no Actions pending or, to the knowledge of the Company, threatened as of the
date hereof that seek to materially interfere with or delay the consummation of the transactions contemplated by this Agreement.
There is no material inquiry, investigation or review pending or, to the knowledge of the Company, threatened by any Governmental
Entity with respect to the Company or any of its subsidiaries as of the date hereof. Except as set forth in Section 3.9(b)(i) of
the Company Disclosure Letter, within the past three (3) years, there have been no material judgments, orders or settlements
(including monetary settlements of more than $500,000 paid to a plaintiff or group of plaintiffs, injunctive relief or the imposition
of criminal sanctions) to which the Company or any of the Company’s subsidiaries is a party (other than as a beneficiary)
or by which any of their assets or properties is bound as of the date hereof. As of the date hereof, no director or officer of
the Company or any of its subsidiaries is a defendant in any Action to which the Company or any of its subsidiaries is not also
a defendant, including as a nominal defendant, in connection with his or her status as a director or officer of the Company or
any of its subsidiaries.
Section 3.11 Company
Plans.
(a) Section 3.11(a) of
the Company Disclosure Letter contains a true, correct and complete list, as of the date of this Agreement, of each material Company
Plan. For purposes of this Agreement, a “Company Plan” is any Benefit Plan: (i) under which any current,
former or retired employee or director of the Company or any of its subsidiaries (collectively, the “Company Employees”)
or individual or sole proprietorship serving as a consultant or independent contractor to the Company or any of its subsidiaries
has any present or future right to benefits and that is contributed to (or required to be contributed to), sponsored or maintained
by the Company or any of its subsidiaries; or (ii) with respect to which the Company or any of its subsidiaries has any actual
or contingent liability. For purposes of the representations and warranties set forth in this Section 3.11(a), references
to “Company Plan” shall not include any “multiemployer plan” (within the meaning of Section 3(37)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (a “Multiemployer Plan”),
to which the Company or any of its subsidiaries or any of their respective ERISA Affiliates contributes (or is required to contribute
to) or any Benefit Plan maintained by a Governmental Entity.
(b) With
respect to each material Company Plan, the Company has made available to BidCo, including through filings with the SEC, a true,
correct and complete copy thereof (or, to the extent no such copy exists, an accurate written description) and, to the extent applicable,
including all amendments thereto, (i) any related trust agreement or other funding instrument, (ii) the most recent determination
letter, if any, received from the Internal Revenue Service (the “IRS”) and (iii) for the most recent year,
(A) the Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports,
if any.
(c) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, (i) each Company Plan has been established,
registered, amended, funded, invested, maintained and administered in all material respects in accordance with its terms and in
compliance with the applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended (the “Code”),
and other applicable Laws, (ii) with respect to each Company Plan, there are no Actions (other than routine claims for benefits
in the ordinary course of business), audits by, on behalf of or against any Company Plan or any trusts related thereto, pending
or, to the knowledge of the Company, threatened and (iii) all contributions or other amounts payable by the Company or any
of its subsidiaries with respect to each Company Plan that are due, have been paid in accordance with applicable Law and, if not
due, have been paid or accrued in accordance with GAAP. Each Company Plan that is intended to be qualified under Section 401(a) of
the Code has received a determination letter to that effect from the IRS or is entitled to rely upon a favorable opinion issued
by the IRS, and to the knowledge of the Company, no circumstances exist which would reasonably be expected to adversely affect
such qualification. Except as would not have, or reasonably be expected to have, a Material Adverse Effect, each Company Plan that
is maintained for employees located outside of the U.S. and which is intended to qualify for tax-preferred or tax-exempt treatment
has been duly registered in accordance with applicable Laws, and, to the knowledge of the Company, there are no existing circumstances
or any events that have occurred that could reasonably be expected to adversely affect the tax status of any such plan.
(d) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, each Company Plan that is a “nonqualified
deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered in
compliance with the operational and documentary requirements of Section 409A of the Code and the regulations thereunder.
(e) Neither
the Company nor any of its subsidiaries is party to, or is otherwise obligated under, any plan, policy, agreement or arrangement
that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding
provisions of foreign, state or local Law relating to Tax).
(f) Neither
the Company, any Company Plan nor any trustee, administrator or other third party fiduciary and/or party-in-interest thereof has
engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406
of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which
would reasonably be expected to subject the Company, any ERISA Affiliate or any Company Plan to any tax or penalty on prohibited
transactions imposed by Section 4975 of the Code (or any corresponding provisions of Law), except as would not have, or reasonably
be expected to have, a Material Adverse Effect.
(g) No
Company Plan is or has within the last six (6) years been subject to the minimum funding requirements of Section 412
of the Code or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonably be expected
to become, the subject of any lien arising under Section 302 of ERISA or Section 412(n) of the Code. Neither the
Company nor any of its subsidiaries has incurred or is expected to incur any liability under subtitles C or D of Title IV of ERISA
with respect to any ongoing, frozen or terminated “single-employer plan” within the meaning of Section 4001(a)(15)
of ERISA, currently or within the last two (2) years maintained by any of them or any ERISA Affiliate.
(h) Neither
the Company nor any ERISA Affiliate maintains, sponsors, participates in or contributes to, or is obligated to contribute to, or
otherwise has incurred any material obligation or liability (including any contingent liability) under, any Multiemployer Plan.
No Company Plan is a “multiple employer plan” (within the meaning of Section 4063 or 4064 of ERISA). Except as
would not have, or reasonably be expected to have, a Material Adverse Effect, no event has occurred and no condition exists that
would, either directly or by reason of the Company’s or any of its subsidiaries’ affiliation with any of their ERISA
Affiliates, subject the Company or any of its subsidiaries to any Tax, fine, Lien, penalty or other liability imposed by ERISA,
the Code or other applicable Laws.
(i) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, each Company Plan that is maintained primarily
for the benefit of employees outside of the U.S. (such plans hereinafter being referred to as “Non-U.S. Company Plans”)
that are intended to be funded and/or book-reserved are fully funded and/or book-reserved, as appropriate, based upon reasonable
actuarial assumptions. Except as would not have, or reasonably be expected to have, a Material Adverse Effect, there is no pending
or, to the knowledge of the Company, threatened litigation relating to any Non-U.S. Company Plan. No material Non-U.S. Company
Plan is a defined benefit pension plan.
(j) Except
as set forth in Section 3.11(j) of the Company Disclosure Letter, neither the execution and delivery of this Agreement,
stockholder approval of the Acquisition nor the consummation of the transactions contemplated by this Agreement could (either alone
or in combination with another event) result in any of the following with respect to any Company Employee or individual independent
contractor or consultant of the Company or any of its subsidiaries: (i) the entitlement to severance pay, unemployment compensation
or any other payment, except as required by applicable Law; (ii) any payment, compensation or benefit becoming due; (iii) the
increase in the amount of any payment, compensation or benefit due; (iv) the acceleration of the time of payment or vesting
of any payment, compensation or benefit; (v) any funding (through a grantor trust or otherwise) of any compensation or benefits;
or (vi) “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code or the equivalent
thereof under applicable non-U.S. Laws.
Section 3.12 Labor
and Employment Matters.
(a) Except
as set forth in Section 3.12(a) of the Company Disclosure Letter, neither the Company nor any of its subsidiaries
is a party to any collective bargaining agreement, Contract or similar agreement or understanding with any labor organization,
labor union, works council, employee association or other Representative of any Company Employees (collectively, “Union”),
nor is any such agreement being negotiated by the Company, and neither the Company nor any of its subsidiaries has a duty to bargain
with any Union. Except as would not have, or reasonably be expected to have, a Material Adverse Effect, since January 1, 2018,
there has not been, nor is there pending or, to the knowledge of the Company, threatened (i) any labor dispute between the
Company or any of its subsidiaries and any Union, or any strikes, work stoppages, slowdowns, lockouts, picketing, slowdown, work
stoppage, or similar material labor disputes or organized labor activity involving any employee of the Company or any of its subsidiaries.
Except as would not have, or reasonably be expected to have, a Material Adverse Effect, there are no (a) unfair labor practice
complaints pending against the Company or any of its subsidiaries before the National Labor Relations Board or any other labor
relations tribunal or authority or (b) to the knowledge of the Company, Union organizing efforts or election activity involving,
any employee of the Company or any of its subsidiaries (in respect of employment therewith), including any demands for recognition
or certification, attempts to bargain collectively or filings for recognition with any Governmental Entity.
(b) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, neither the Company nor any of its subsidiaries
is subject to any liabilities or obligations under the Worker Adjustment and Retraining Notification Act and the regulations promulgated
thereunder or any similar state or local Law that remain unsatisfied.
(c) Each
of the Company and the subsidiaries is, and has been since January 1, 2018, in compliance in all respects with all federal,
state, local and foreign Laws regarding: labor, employment and employment practices, including but not limited to all Laws relating
to employment practices; the hiring, promotion, assignment, and termination of employees; discrimination; harassment; retaliation;
equal employment opportunities; disability; labor relations; wages and hours; the Fair Labor Standards Act of 1938, as amended,
and applicable state and local wage and hour Laws (collectively, “FLSA”); hours of work; payment of wages; immigration;
workers’ compensation; employee benefits; background and credit checks; working conditions; occupational safety and health;
family and medical leave; employee terminations; data privacy and data protection; and any bargaining or other obligations under
the National Labor Relations Act, except, in each case, as would not have, or reasonably be expected to have, a Material Adverse
Effect. Except as would not have, or reasonably be expected to have, a Material Adverse Effect, each employee, officer and independent
contractor of the Company and any of its subsidiaries has all work permits, immigration permits, visas or other authorizations
required by applicable Law for such service provider given the duties and nature of such service provider’s services and
a properly completed Form I-9 is on file with respect to each U.S.-based employee of the Company.
(d) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, there are no pending or, to the knowledge of the
Company, threatened or anticipated lawsuits, grievances, unfair labor practice charges, arbitrations, charges, investigations,
hearings, actions, claims, or proceedings (including any administrative investigations, charges, claims, actions or proceedings),
against the Company or any of its subsidiaries brought by or on behalf of any applicant for employment, any current or former officer,
employee, consultant, independent contractor, leased employee, volunteer, or “temp” of the Company or any of its subsidiaries,
or any group or class of the foregoing, any Governmental Entity, any person alleging to be a current or former employee, or any
group or class of the foregoing, alleging violation of any labor or employment Law, breach of any collective bargaining agreement,
breach of any express or implied contract of employment, wrongful termination of employment or any other discriminatory, wrongful
or tortious conduct in connection with any employment relationship.
(e) Each
individual who performs or has performed services for the Company or any of its subsidiaries has been properly classified under
applicable Law as (i) an employee or an independent contractor and (ii) for employees, as an “exempt” employee
or a “non-exempt” employee (within the meaning of the FLSA and state Law), and no such individual has been improperly
included or excluded from any Company Plan, except, in each case, as would not have, or reasonably be expected to have, a Material
Adverse Effect, and neither the Company nor any of its subsidiaries has written notice of any pending inquiry or audit from any
Governmental Entity concerning any such classifications.
Section 3.13 Insurance.
Except as would not be material to the Company and its subsidiaries, taken as a whole, the Company and each of its subsidiaries
and properties are covered by valid and effective insurance policies issued in favor of the Company or any of its subsidiaries
and self-insurance amounts, which together are customary in all material respects in terms, risks covered and coverage amounts
for companies or properties of similar size in the industry and locales in which the Company and its subsidiaries operate. Section 3.13
of the Company Disclosure Letter contains a list of all material insurance policies in effect as of the date of this Agreement,
including occurrence-based policies in force. Except as set forth in Section 3.13 of the Company Disclosure Letter,
there is no material claim by the Company or any subsidiary of the Company pending under any insurance policies which has been
denied or disputed by the insurer. Except as would not have, or reasonably be expected to have, a Material Adverse Effect, all
insurance policies of the Company and its subsidiaries (a) are in full force and effect, (b) all premiums due with respect
to such insurance policies have been paid in accordance with the terms thereof, (c) neither the Company nor any of its subsidiaries
is in breach or default, and neither the Company nor any of its subsidiaries has taken any action or failed to take any action
which, with notice or the lapse of time, or both, would constitute such a breach or default under, or permit termination or material
modification of, any such insurance policy and (d) to the knowledge of the Company, no insurer on such insurance policy has
been declared insolvent or placed in receivership, conservatorship or liquidation. Neither the Company nor any subsidiary of the
Company has received any written notice of cancellation or termination with respect to any material insurance policy existing
as of the date hereof that is held by, or for the benefit of, any of the Company or any of its subsidiaries. The Company and its
subsidiaries, and their respective assets and properties, have at all times since the Applicable Date, been and are adequately
insured, to the extent required by Law or any Contract to which the Company or any of its subsidiaries are party, except as would
not have, or reasonably be expected to have, a Material Adverse Effect. No policy limits applicable to any insurance policies
of the Company or any of its subsidiaries have been exhausted or materially reduced.
Section 3.14 Properties.
(a) Section 3.14(a) of
the Company Disclosure Letter sets forth a complete list of all Owned Real Property. Except as would not have, or reasonably be
expected to have, a Material Adverse Effect, the Company or any of its subsidiaries has good and marketable fee simple title to
all Owned Real Property and valid leasehold estates in all Leased Real Property free and clear of all Liens (except Permitted
Liens). The Company or any of its subsidiaries has possession of each Owned Real Property and Leased Real Property, other than
any use and occupancy rights granted to tenants or licensees pursuant to leases and occupancy agreements. Except as set forth
in Section 3.14(a) of the Company Disclosure Letter, neither the Company nor any of its subsidiaries has leased
or otherwise granted to any Person the right to use or occupy all or any material portion of the Owned Real Property, and neither
the Company nor any of its subsidiaries has granted any outstanding options, rights of first refusal, rights of first offer or
other third party rights to purchase such Owned Real Property or any portion thereof.
(b) Section 3.14(b) of
the Company Disclosure Letter lists the street address of each parcel of Leased Real Property, and all Leases, and except as would
not have, or reasonably be expected to have, a Material Adverse Effect, (i) each Lease is in full force and effect and is
the valid, binding and enforceable obligation of the Company and/or each of its subsidiaries party thereto and, to the knowledge
of the Company, of the other party thereto, subject to the Bankruptcy and Equity Exception, (ii) to the knowledge of the
Company, there is no material default under any Lease either by the Company or any of its subsidiaries or, to the knowledge of
the Company, by any other party thereto, no event has occurred or circumstance exists that, with the lapse of time or the giving
of notice or both, would constitute such a default by the Company or any of its subsidiaries under any Lease, and (iii) except
as set forth in Section 3.14(b)(iii) of the Company Disclosure Letter, neither the Company nor any of its subsidiaries
has subleased, licensed or otherwise granted any Person the right to use or occupy any Leased Real Property or any portion thereof.
The Company has made available to BidCo a true, correct and complete copy of each Lease.
(c) The
Real Property constitutes all of the real property used or occupied by the Company and its subsidiaries.
(d) There
is no pending or, to the knowledge of the Company, threatened appropriation, condemnation, eminent domain or like Proceeding,
or sale or other disposition in lieu of condemnation, affecting the Real Property.
(e) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, the Company or any of its subsidiaries has good
and marketable title to, or valid leasehold interests in or licenses for, all personal property used in the businesses of the
Company and its subsidiaries, free and clear of all Liens (other than Permitted Liens), and such property is in good working order
and condition, ordinary wear and tear excepted. The assets owned, leased or licensed by the Company and its subsidiaries are sufficient
in all material respects for the conduct of their business as currently conducted.
Section 3.15 Tax
Matters. Except as would not have, or reasonably be expected to have, a Material Adverse Effect:
(a) The
Company and each of its subsidiaries (A) have timely filed (taking into account any extension of time within which to file)
all Tax Returns (as defined below) required to be filed by any of them, and all such filed Tax Returns are complete and accurate;
(B) have paid all Taxes (as defined below) due and payable (whether or not shown on any Tax Return) and the most recent financial
statements contained in the SEC Reports reflect an adequate reserve for all Taxes payable by the Company and its subsidiaries
for all taxable periods and portions thereof accrued through the date of such financial statements and, since the date of such
financial statements, neither the Company nor any of its subsidiaries has incurred any Tax liabilities other than Taxes relating
to ordinary course operations conducted by the Company and its subsidiaries; and (C) have not waived any statute of limitations
with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, and no request for any
such waiver or extension is currently pending.
(b) The
Company and each of its subsidiaries have complied with all applicable Law relating to the payment and withholding of Taxes and
have, within the time and in the manner prescribed by Law, withheld (or will withhold) and paid over to the proper Governmental
Entity all amounts required to be so withheld and paid over, except with respect to matters for which adequate accruals or reserves
have been established, in accordance with GAAP, on the Company’s financial statements.
(c) There
is no audit, examination, investigation or other Proceeding pending, or threatened in writing, against the Company or any of its
subsidiaries in respect of any Taxes. Each assessed deficiency resulting from any audit, examination or other proceeding relating
to Taxes by any Governmental Entity has been timely paid or otherwise finally resolved. There are no Liens on any of the assets
of the Company or any of its subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other
than Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings and adequately reserved
for in the latest audited financial statements included in the SEC Reports.
(d) Neither
the Company nor any of its subsidiaries (A) has any liability for the Taxes of any Person (other than the Company or its
subsidiaries) under Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, as a result
of being included in any consolidated, affiliated, combined or unitary Tax Return (other than a Tax Return with respect to a group
the common parent of which is the Company or one of its subsidiaries), as a transferee or successor, under Contract or otherwise,
or (B) has any liability for any Taxes of any Person (other than the Company and its subsidiaries) pursuant to any Tax sharing
agreement, Tax allocation agreement or Tax indemnity agreement or other similar agreement (other than any other commercial agreements
or Contracts not primarily related to Taxes entered into in the ordinary course of business or any agreement among or between
only the Company and/or any of its subsidiaries entered into in the ordinary course of business) or (C) has been either a
“distributing corporation” or a “controlled corporation” in a transaction intended to be governed by Section 355
of the Code in the two-year period ending on the date of this Agreement.
(e) Neither
the Company nor any of its subsidiaries is a “United States real property holding corporation” within the meaning
of Section 897 of the Code.
(f) The
Company is classified and treated as a non-U.S. corporation for U.S. federal income tax purposes.
(g) Neither
the Company nor any of its subsidiaries has participated in any “listed transactions” within the meaning of Treasury
Regulations Section 1.6011-4 (or any similar provision of state, local or non-U.S. Tax Law).
(h) No
written claim has been made by a Governmental Entity in a jurisdiction where the Company or any of its subsidiaries does not file
Tax Returns such that it is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction.
(i) Neither
the Company nor any of its subsidiaries has executed or entered into a closing agreement pursuant to Section 7121 of the
Code or any similar provision of state, local or non-U.S. Tax Law, and neither the Company nor any of its subsidiaries is subject
to any private letter ruling of any Governmental Entity.
(j) Neither
the Company nor any of its subsidiaries has made an election under Section 965 of the Code.
(k) Neither
the Company nor any of its subsidiaries has deferred any Taxes under Section 2302 of the CARES Act (or any provision of applicable
law with similar effect or import) that otherwise would have been required to be deposited and paid in connection with amounts
paid by the Company or any of its subsidiaries to any employee or independent contractor. Neither the Company nor any of its subsidiaries
has claimed any employee retention credit pursuant to Section 2301 of the CARES Act nor has any obligations under any loans
issued pursuant to the Paycheck Protection Program under the CARES Act.
(l) For
purposes of this Agreement:
(i) “Taxes”
means (i) all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty,
share capital, severance, stamp, payroll, sales, employment, unemployment, disability, use, real property, personal property,
withholding, excise, license, production, value added, occupancy, services, transfer, employee, payroll, estimated, alternative
minimum, add-on minimum, capital gain, registration, ad valorem, natural resources, occupation, goods and services, branch, utility,
production, premium, windfall profit, social security and other taxes, duties or other like assessments of any nature whatsoever
imposed by any Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts and
any interest in respect of such penalties and additions, (ii) any and all liability for the payment of any items described
in clause (i) above as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined, unitary or
aggregate group (or being included (or being required to be included) in any Tax Return related to such group) and (iii) any
and all liability for the payment of any amounts as a result of any express or implied obligation to indemnify any other person,
or any successor or transferee liability, in respect of any items described in clause (i) or (ii) above; and
(ii) “Tax
Return” means all returns, forms, statements, declarations, reports (including any attached schedules) or other documents
filed or required to be filed with a Governmental Entity with respect to Taxes, including any information return, claim for refund,
amended return, declaration of estimated Tax, election or disclosure.
Section 3.16 Proxy
Statement and the Circular. None of the information supplied or to be supplied by the Company for inclusion or incorporation
by reference in either or both of (a) the Proxy Statement to be sent to the Company Shareholders in connection with the Company
Shareholders Meetings (such Proxy Statement, including the letter to Company Shareholders, notice of meeting and form of proxy
and any amendment or supplement, the “Proxy Statement”) or (b) the Circular will, at the time the Proxy
Statement or the Circular (and any amendment or supplement thereto), as applicable, is filed with the SEC, or at the time it is
first mailed to the Company Shareholders or at the time of the Company Shareholders Meetings, (i) contain any untrue or misleading
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they are made, not false or misleading or (ii) omit to
state any material fact required to be stated therein or necessary to correct any statement in any earlier communication with
respect to the solicitation of proxies for the Company Shareholders Meetings which has become false or misleading. Each of the
Proxy Statement and the Circular will, at the time of the Company Shareholders Meetings, comply as to form in all material respects
with the applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding
the foregoing, the Company makes no representation or warranty with respect to any statement made in either or both of the Proxy
Statement and the Circular based on BidCo Information supplied by or on behalf of BidCo or any of their respective Representatives
which is contained or incorporated by reference in either or both of the Proxy Statement and the Circular.
Section 3.17 Intellectual
Property.
(a) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, all Intellectual Property used or held for use
in the operation of the Company and its subsidiaries’ respective businesses as currently conducted (the “Company
Intellectual Property”) is owned by the Company or its applicable subsidiary, free and clear of all Liens except Permitted
Liens (the “Owned Intellectual Property”) or licensed to the Company or one of its subsidiaries (the “Licensed
Intellectual Property”), or the Company and its subsidiaries otherwise have a valid right to use the Company Intellectual
Property. Section 3.17(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all
material Owned Intellectual Property that is registered with or issued by, or the subject of a pending application for registration
with or issuance by, any Governmental Entity. Except as would not have, or reasonably be expected to have, a Material Adverse
Effect, to the knowledge of the Company, (i) all of the registrations and issuances set forth in Section 3.17(a) of
the Company Disclosure Letter are subsisting and unexpired, valid and enforceable and (ii) the Company and its subsidiaries
have taken commercially reasonable efforts to enforce, protect and maintain their material trade secrets, material confidential
information and other material Owned Intellectual Property. Except as would not have, or reasonably be expected to have, a Material
Adverse Effect, the Company Intellectual Property is sufficient for the Company and its subsidiaries to conduct its respective
businesses as currently conducted; provided that nothing in this sentence or elsewhere in this Section 3.17(a) constitutes
a representation or warranty as to non-infringement of any Intellectual Property owned by any third party which is addressed in
Section 3.17(b) of this Agreement.
(b) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, (i) the Company and its subsidiaries’
conduct of their businesses does not infringe, dilute or misappropriate the Intellectual Property of any third party, (ii) no
Action is pending or, to the knowledge of the Company, threatened (including “cease and desist” letters) against any
of the Company or its subsidiaries, in each case, that (A) challenges the validity, enforceability or ownership of the Owned
Intellectual Property, or the right to use or license the Company Intellectual Property, or (B) alleges that the Company
and its subsidiaries’ conduct of their businesses infringes, dilutes or misappropriates the Intellectual Property of any
third party and (iii) to the knowledge of the Company, no Owned Intellectual Property is being infringed, diluted or
misappropriated by any third party.
(c) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, to the knowledge of the Company, all IT Assets
used by the Company or any of its subsidiaries in the conduct of their respective businesses: (i) are adequate for the businesses
of the Company and its subsidiaries as currently conducted; and (ii) since January 1, 2018, have not experienced or
been affected by any failures or breakdowns that have caused any material disruption or material interruption to the business
of the Company and its subsidiaries.
(d) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, to the knowledge of the Company, the Company
and its subsidiaries have not incorporated any Open Source Software into any material proprietary Software owned and distributed
by the Company or its subsidiaries (“Company Software”) in a manner that requires the Company or its subsidiaries,
pursuant to the applicable license agreement for such Open Source Software, to disclose or license the source code of any such
Company Software to any third party or license any other material Owned Intellectual Property to any third party.
(e) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, to the knowledge of the Company, all IT Assets
used by the Company or any of its subsidiaries in the conduct of their respective businesses: (i) are adequate for the businesses
of the Company and its subsidiaries as currently conducted; and (ii) since January 1, 2018, have not experienced or
been affected by any failures or breakdowns that have caused any material disruption or material interruption to the business
of the Company and its subsidiaries.
(f) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, since January 1, 2018, there has been no
data security breach of any IT Assets or unauthorized access, use or disclosure of any Personal Information owned, used, received,
or controlled by the Company or any of the subsidiaries, including any unauthorized access, use or disclosure of Personal Information
that would constitute a breach for which notification to individuals and/or Governmental Entities is required under any applicable
Information Privacy and Security Laws or Contracts to which the Company or any of its subsidiaries is a party that govern that
Personal Information.
(g) Since
January 1, 2018, the Company’s and each of its subsidiaries’ collection, transmission, use, disclosure, storage,
disposal and security of Personal Information have complied and comply with (i) applicable Information Privacy and Security
Laws in all material respects, (ii) Contracts to which the Company or a Company subsidiary is a party that govern that Personal
Information, and (iii) applicable privacy policies or disclosures provided internally or posted to public-facing websites
or mobile applications of the Company or a subsidiary thereof (the “Privacy Policies”), except, in the case
of the foregoing clauses (ii) and (iii), as would not have, or reasonably be expected to have, a Material Adverse Effect.
Except as set forth in Section 3.17(g) of the Company Disclosure Letter, no action is pending or, to the knowledge
of the Company, threatened against the Company or any of its subsidiaries relating to the collection or use of Personal Information,
except as would not have, or reasonably be expected to have, a Material Adverse Effect. To the knowledge of the Company, the execution,
delivery and performance of this Agreement and the consummation of the transactions contemplated thereby do not materially violate
any applicable Information Privacy and Security Laws or Privacy Policy as any of them currently exists or, since January 1,
2018, existed at any time during which any Personal Information was collected or obtained by the Company or any of its subsidiaries
and, to the knowledge of the Company, upon the Effective Date, the Company and its subsidiaries will not be prohibited by any
legal obligations from continuing to use such Personal Information in the same manner as prior to the Effective Date.
(h) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, since January 1, 2018, the Company and each
of its subsidiaries have adopted, and are and have been in compliance with, commercially reasonable policies and procedures that
apply to the Company and/or each subsidiary with respect to privacy, data protection, security and the collection and use of Personal
Information gathered or accessed in the course of the operations of the Company and its subsidiaries. Except as would not have,
or reasonably be expected to have, a Material Adverse Effect, the Company and each of its subsidiaries have performed all security
risk assessments required under applicable Information Privacy and Security Laws and have addressed and fully remediated all material
vulnerabilities identified in those security risk assessments.
Section 3.18 Environmental
Matters.
(a) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect: (i) neither the Company nor any of its subsidiaries
is, or for the past three (3) years has been, in violation of any applicable Environmental Law; (ii) each of the Company
and its subsidiaries have, and, to the extent applicable, have filed timely application to renew, all Licenses required under
any applicable Environmental Laws for the operation of their respective businesses as currently conducted, and are, and for the
past three (3) years have been, in compliance with the requirements of such Licenses; (iii) there are no administrative,
regulatory, judicial or arbitration actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating to any Environmental Law pending, or, to the knowledge of the Company, threatened against
the Company or any of its subsidiaries or with respect to any of their respective properties; (iv) neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any of their respective properties is or is subject to any order,
writ, judgment, injunction, decree award, or settlement relating to any Environmental Law; (v) to the knowledge of the Company,
there has been no release or threatened release of any Hazardous Materials at, on, under or from, and no Hazardous Materials are
present at, on or under, any property currently or formerly owned, leased or operated by the Company or any of its subsidiaries,
or any other location; and (vi) to the knowledge of the Company, there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean up or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against the Company or any of its subsidiaries relating to Hazardous Materials or any applicable
Environmental Laws.
(b) The
Company has made available to BidCo all material environmental assessments, investigations, studies or other analyses relating
to the business, assets or properties of the Company or any of its subsidiaries from the past three (3) years that are in
the possession or control of the Company or any of its subsidiaries.
(c) For
purposes of this Agreement, the following terms shall have the meanings assigned below:
“Environmental
Laws” means Laws concerning pollution or protection of the environment or natural resources, or the release or threatened
release of Hazardous Materials or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of, or exposure to, Hazardous Materials.
“Hazardous
Materials” means any material, substance or waste classified, regulated or otherwise characterized under any applicable
Environmental Law as pollutants, contaminants, hazardous, toxic, or words of similar meaning and regulatory effect, including
petroleum or petroleum products, asbestos, asbestos-containing material, polychlorinated byphenol, or radioactive compound.
Section 3.19 Opinion
of Financial Advisor. Goldman Sachs & Co. LLC (the “Financial Advisor”) has rendered to
the Board its oral opinion (to be confirmed by delivery of a written opinion dated as of the date of this Agreement), that, as
of such date and based upon and subject to the factors and assumptions set forth in the Financial Advisor’s written opinion,
the Consideration to be paid to the Company Shareholders is fair, from a financial point of view, to the Company Shareholders.
The Company, solely for informational purposes, shall deliver to BidCo a copy of any such opinion received by the Board in written
form promptly following receipt thereof.
Section 3.20 Brokers.
No broker, finder or investment banker (other than the Financial Advisor) is entitled to any brokerage, finder’s or other
fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf
of the Company or any of its subsidiaries.
Section 3.21 Takeover
Statutes; Rights Plan. No “fair price,” “moratorium,” “control share acquisition,”
“business combination” or other similar Law applicable to the Company or its subsidiaries (each, a “Takeover
Law”) or similar provisions under the organizational documents of the Company and its subsidiaries, is applicable to
this Agreement or the transactions contemplated hereby, including the Acquisition. Neither the Company nor any of its subsidiaries
is a party to a rights agreement, “poison pill” or similar agreement or plan. Neither the Company nor any of its subsidiaries
is subject to the U.K. Listing Rules or the UK City Code on Takeovers and Mergers.
Section 3.22 Affiliate
Transactions. No Related Party is a party to any Contract with or binding upon the Company or its subsidiaries (other
than employment agreements) or any of their respective properties or assets or has any material interest in any property used
by the Company or its subsidiaries or has engaged in any transaction with any of the foregoing since the Applicable Date, in either
case, that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act (a “Company Affiliate
Transaction”) that has not been so disclosed. Any Company Affiliate Transaction as of the time it was entered into and
as of the time of any amendment or renewal thereof contained such terms, provisions and conditions as were at least as favorable
to the Company or any of its subsidiaries as would have been obtainable by the Company in a similar transaction with an unaffiliated
third party. No Related Party of the Company or any of its subsidiaries owns, directly or indirectly, on an individual or joint
basis, any interest in, or, except as set forth in Section 3.22 of the Company Disclosure Letter, serves as an officer
or director or in another similar capacity of, any supplier or other independent contractor of the Company or any of its subsidiaries,
or any organization which has a Contract with the Company or any of its subsidiaries.
Section 3.23 Anti-Corruption;
International Trade.
(a) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, neither the Company, any subsidiary of the Company
or any Representative has in the past three (3) years offered, paid, promised to pay or authorized the payment of any money,
or offered, given, promised to give or authorized the giving of anything of value, including but not limited to cash, checks,
wire transfers, tangible and intangible gifts, favors, services and those entertainment and travel expenses that go beyond what
is reasonable and customary and of modest value, to any Government Official or to any Person under circumstances where the Company,
any subsidiary of the Company or the Representative knew or ought reasonably to have known (after due and proper inquiry) that
all or a portion of such money or thing of value would be offered, given, or promised, directly or indirectly, to a Person:
(i) for
the purpose of: (A) influencing any act or decision of a Government Official in his or her official capacity; (B) inducing
a Government Official to do or omit to do any act in violation of his or her lawful duties; (C) securing any improper advantage;
(D) inducing a Government Official to influence or affect any act or decision of any Governmental Entity; or (E) assisting
any Company, any subsidiary of the Company, or any Representative in obtaining or retaining business for or with, or directing
business to, any Company, any subsidiary of the Company or any Representative; and
(ii) in
a manner which would constitute or have the purpose or effect of public or commercial bribery, acceptance of, or acquiescence
in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage.
(b) The
Company and each of its subsidiaries are, and for the past three (3) years have been, in compliance in all material respects
with all Laws relating to imports, exports and economic sanctions, including all Laws administered and enforced by the U.S. Treasury
Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. State Department, United Nations,
European Union and Her Majesty’s Treasury (“Trade Laws”). In the past three (3) years, neither the
Company nor any of its subsidiaries has been a party to any Contract or engaged in any transaction or other business, directly
or indirectly, (A) in material breach of Trade Laws or (B) with any Sanctioned Person. Neither the Company nor any of
its subsidiaries nor any Representative is a Sanctioned Person. To the knowledge of the Company, no proceeds from the sale of
the Company Shares will be provided to or used for the benefit of any OFAC Prohibited Party. Since January 1, 2018, neither
the Company nor any of its subsidiaries has, in connection with or relating to the business of the Company or any of its subsidiaries,
received from any Governmental Entity or any other Person any written notice, made any voluntary or involuntary disclosure to
a Governmental Entity, or conducted any internal investigation concerning any material violation or alleged material violation
of any Trade Law.
(c) Except
as would not have, or reasonably be expected to have, a Material Adverse Effect, the Company and each of its subsidiaries are
and for the past three (3) years have been in compliance with all applicable Anti-Money Laundering Laws.
(d) Neither
the Company nor any of its subsidiaries has conducted or initiated any internal investigation or made a voluntary, directed, or
involuntary disclosure to any Governmental Entity or similar agency with respect to any alleged act or omission arising under
or relating to any noncompliance with any Anti-Corruption Law, Anti-Money Laundering Law or Trade Law. None of any Company, any
subsidiary of the Company, or any Representative has received any notice, request, or citation for any actual or potential noncompliance
with any Anti-Corruption Law, Anti-Money Laundering Law or Trade Law.
(e) The
Company and each subsidiary of the Company has maintained complete and accurate books and records, including records of payments
to any agents, consultants, Representatives, third parties and Government Officials in accordance with GAAP, and has adopted and
maintained adequate policies, procedures and internal controls, in each case, as required by applicable Anti-Corruption Laws.
Section 3.24 Suppliers
and Customers. Section 3.24(a) of the Company Disclosure Letter sets forth a true, correct and complete
list of the twenty (20) largest suppliers (including vault cash suppliers), vendors, distributors or purchasing agents (“Suppliers”)
of the Company and its subsidiaries (based on the dollar value of purchases from the 12 month period ending June 30, 2020),
together with amounts paid by or to such Persons during such period. Section 3.24(b) of the Company Disclosure
Letter also sets forth a true, correct and complete list of the twenty (20) largest customers (“Customers”)
of the Company and its subsidiaries (based on the dollar value of revenues from fiscal year 2019), together with amounts paid
by or to such Persons during such period. Other than to the extent implemented by the Company, none of the foregoing Suppliers
has reduced or otherwise discontinued, or, to knowledge of the Company, threatened to materially reduce or discontinue, supplying
goods or services to the Company or any of its subsidiaries, or distributing goods or services on behalf of the Company or any
of its subsidiaries, in each case, on terms and conditions substantially similar (including with respect to pricing) to those
in effect on the date hereof. Except as set forth on Section 3.24(c) of the Company Disclosure Letter, none of
the foregoing Customers has reduced or otherwise discontinued, or, to knowledge of the Company, threatened to materially reduce
or discontinue, purchasing goods or services from the Company or any of its subsidiaries, in each case, on terms and conditions
substantially similar (including with respect to pricing) to those in effect on the date hereof.
Section 3.25 Solvency.
Immediately prior to the Effective Date, the Company will be solvent. No transfer of assets or property is being made by
the Company or any of its subsidiaries, and no obligation is being incurred by the Company or any of its subsidiaries in connection
with the transactions contemplated hereby, with the intent to hinder, delay or defraud either present or future creditors of the
Company.
Section 3.26 No
Other Representations or Warranties. Except for the representations and warranties contained in Article IV,
the Company acknowledges and agrees that no representation or warranty of any kind whatsoever, express or implied, at Law or in
equity, is made or shall be deemed to have been made by or on behalf of BidCo to the Company, and the Company hereby expressly
disclaims reliance upon any such representation or warranty, whether by or on behalf of BidCo, any of its Affiliates or any of
their respective Representatives or any other Person and notwithstanding the delivery or disclosure to the Company or any of its
Affiliates, Representatives, Related Parties or any other Person of any documentation or other information by BidCo or any of
its Affiliates or any of their specific Representatives or any other Person with respect to any one (1) or more of the foregoing.
For the avoidance of doubt, the foregoing shall not operate to limit or invalidate any representation or warranty contained in
any other Transaction Document.
Article IV
REPRESENTATIONS
AND WARRANTIES OF
BIDCO
BidCo hereby represents
and warrants to the Company that, except as set forth on the corresponding sections or subsections of the disclosure letter delivered
to the Company by BidCo concurrently with entering into this Agreement (the “BidCo Disclosure Letter”), it
being agreed that disclosure of any item in any section or subsection of the BidCo Disclosure Letter shall also be deemed disclosure
with respect to any other section or subsection of this Agreement to which the relevance of such item is readily apparent on the
face of such disclosure:
Section 4.1 Organization.
BidCo is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization
and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry
on its business as presently conducted and is qualified to do business and, to the extent such concept is applicable, is in good
standing as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its
assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, qualified
or, to the extent such concept is applicable, in such good standing, or to have such power or authority, would not, individually
or in the aggregate, reasonably be expected to have a BidCo Material Adverse Effect. BidCo has made available to the Company prior
to the date of this Agreement a true, correct and complete copy of the certificate of incorporation and Articles of Association
of BidCo, each as amended to the date of this Agreement, and each as so delivered is in full force and effect.
Section 4.2 Authority.
BidCo has all requisite corporate power and authority, and has taken all corporate or other action necessary in order to execute,
deliver and perform its obligations under this Agreement, and to consummate the Acquisition and the other transactions contemplated
hereby. The execution, delivery and performance of this Agreement by BidCo and the consummation by BidCo of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate or similar action by the board of directors of BidCo and,
no other corporate proceedings or similar action on the part of BidCo or any of its Affiliates is necessary to authorize this
Agreement, to perform their respective obligations hereunder or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by BidCo and, assuming the due and valid authorization, execution and delivery of this Agreement
by the Company, is a valid and binding agreement of BidCo, enforceable against BidCo in accordance with its terms and conditions,
subject to the Bankruptcy and Equity Exception.
Section 4.3 No
Conflict; Required Filings and Consents.
(a) Except
as set forth in Section 4.3(a) of the BidCo Disclosure Letter, the execution, delivery and performance of this
Agreement by BidCo does not, and the consummation of the Acquisition and the other transactions contemplated hereby will not (i) breach,
violate or conflict with the certificate of incorporation, Articles of Association or other governing documents of BidCo, (ii) assuming
that all consents, approvals and authorizations contemplated by clauses (i) through (v) of subsection (b) below
have been obtained, and all filings described in such clauses have been made, conflict with, breach or violate any Law applicable
to BidCo or by which either of them or any of their respective properties or assets are bound or (iii) result in any breach
or violation of, constitute a default or require a consent (or an event which with notice or lapse of time, or both, would become
a default) or result in the loss of a benefit under, or give rise to any right of termination, cancellation, amendment or acceleration
of, or result in the creation of a Lien (except a Permitted Lien) on any of the material assets of BidCo pursuant to, any Contracts
to which BidCo, or any Affiliate thereof, is a party or by which BidCo or any of its Affiliates or its or their respective properties
are bound (including any Contract to which an Affiliate of BidCo is a party), except, in the cases of clauses (ii) and (iii),
for any such breach, violation, conflict, default, loss, termination, cancellation, amendment or acceleration or other occurrence
which would not reasonably be expected to have, individually or in the aggregate, a BidCo Material Adverse Effect.
(b) The
execution, delivery and performance of this Agreement by BidCo and the consummation of the Acquisition and the other transactions
contemplated hereby by BidCo do not and will not require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Governmental Entity, except for (i) the applicable requirements, if any, of the Exchange Act
and the rules and regulations promulgated thereunder and state securities, takeover and “blue sky” Laws, and
CA 2006, (ii) the filing of a notification and report form by BidCo under the HSR Act and the filings required under the
Antitrust and Foreign Investment Laws or regulations of Australia, Canada, South Africa, New Zealand and the European Union, (iii) the
applicable requirements of Nasdaq and (iv) any such consent, approval, authorization, permit, action, filing or notification
the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a BidCo Material
Adverse Effect.
Section 4.4 Absence
of Litigation. As of the date of this Agreement, there are no Actions pending or, to the knowledge of BidCo, threatened
by any Governmental Entity against BidCo which would reasonably be expected to have, individually or in the aggregate, a BidCo
Material Adverse Effect.
Section 4.5 Operations
of BidCo. The authorized share capital of BidCo consists solely of 1 ordinary share, nominal value GBP 1.00 per share,
all of which are validly issued and outstanding. BidCo has outstanding no option, warrant, right or any other agreement pursuant
to which any Person may acquire any equity security of BidCo. BidCo has been formed solely for the purpose of engaging in the
transactions contemplated hereby and prior to the Effective Date will have engaged in no other business activities and will have
no assets, liabilities or obligations of any nature, other than (i) as expressly contemplated herein or in any other Transaction
Document and (ii) liabilities and obligations incidental to its formation and the maintenance of its existence.
Section 4.6 Proxy
Statement or Circular. Subject to the accuracy of the representations and warranties of the Company set forth in Section 3.16,
none of the BidCo Information supplied or to be supplied by or on behalf of BidCo for inclusion or incorporation by reference
in either or both of the Proxy Statement and the Circular will, on the date the Proxy Statement or the Circular (and any amendment
or supplement thereto), as applicable, is filed with the SEC, or at the time it is first mailed to the Company Shareholders or
at the time of the Company Shareholders Meetings, (a) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they are made, not false or misleading or (b) omit to state any material fact required to be stated therein or
necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders
Meetings which has become false or misleading. Notwithstanding the foregoing, BidCo makes no representation or warranty with respect
to any statement made in either or both of the Proxy Statement and the Circular based on information supplied by the Company or
any of its Representatives that is contained or incorporated by reference in either or both of the Proxy Statement and the Circular.
Section 4.7 Brokers.
No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by and on behalf of BidCo.
Section 4.8 Financing.
As of the date of this Agreement, BidCo has delivered to the Company true, complete and correct copies of (a) the fully executed
debt commitment letter, dated as of the date of this Agreement, between BidCo and the financial institutions and other entities
party thereto (including the parties to any joinder agreements or amendments joining such financial institutions or other entities
to the Debt Commitment Letter and any financial institutions, lenders or investors of the debt financing contemplated by the Debt
Commitment Letter, collectively, the “Debt Financing Sources”) (including all exhibits, schedules and annexes
thereto, and the fully executed fee letter, dated as of the date of this Agreement, between BidCo and the Debt Financing Sources
party thereto (the “Debt Fee Letter”) redacted in a manner as described below, collectively, the “Debt
Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”), pursuant
to which the Debt Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to provide
the aggregate amounts set forth therein to BidCo (the debt financing contemplated by the Debt Commitment Letter, the “Debt
Financing”) and (b) the executed Equity Commitment Letter, pursuant to which the Guarantors have committed, subject
to the terms and conditions set forth therein, to invest cash in the aggregate amount set forth therein (the “Equity
Financing” and, together with the Debt Financing, the “Financing”). As of the date of this Agreement,
BidCo has also delivered to the Company a true, complete and correct copy of the Debt Fee Letter with the fee amounts, “market
flex” provisions, “securities demand” provisions and other economic terms redacted in a customary manner, none
of which redactions covers terms that would (i) reduce the amount of the Debt Financing below the amount required to satisfy
the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its subsidiaries),
(ii) impose any new condition or otherwise amend, modify or expand any conditions precedent to the funding of the Debt Financing
or (iii) delay or prevent the Effective Date or make the funding of the Debt Financing in the amount required to satisfy
the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its subsidiaries)
less likely to occur. As of the date of this Agreement, (A) none of the Commitment Letters have been amended, supplemented
or modified, (B) no such amendment, supplement or modification is contemplated by BidCo or, to the knowledge of BidCo, by
the other parties thereto (other than to add lenders, lead arrangers, bookrunners, syndication agents or other similar roles that
had not executed the Debt Commitment Letter as of the date of this Agreement) and (C) the respective commitments contained
in the Commitment Letters have not been withdrawn, terminated, reduced or rescinded and, to the knowledge of BidCo, no such withdrawal,
termination or rescission is contemplated. As of the date of this Agreement, except for customary engagement letters and fee credit
letters with respect to the Debt Financing (none of which would (I) reduce the amount of the Financing below the amount required
to satisfy the Financing Uses (after taking into account any available cash of the Company and its subsidiaries), (II) impose
any new condition or otherwise amend, modify or expand any conditions precedent to the funding of the Financing or (III) delay
or prevent the Effective Date or make the funding of the Financing in the amount required to satisfy the Financing Uses (after
taking into account any available cash of the Company and its subsidiaries) less likely to occur), there are no side letters or
Contracts to which BidCo is a party related to the Financing required to satisfy the Financing Uses other than as expressly set
forth in the Commitment Letters delivered to the Company on or prior to the date of this Agreement. As of the date of this Agreement,
BidCo has fully paid any and all commitment fees or other fees in connection with the Commitment Letters and, for the avoidance
of doubt, the Debt Fee Letter that are due and payable on or prior to the date of this Agreement pursuant to the terms of the
Debt Commitment Letter and BidCo will, directly or indirectly, continue to pay in full any such amounts required to be paid pursuant
to the terms thereof as and when they become due and payable prior to the Effective Date. As of the date of this Agreement, the
Commitment Letters are in full force and effect and are the legal, valid, binding and enforceable obligations of BidCo and, to
the knowledge of BidCo each of the other parties thereto, subject, in each case, to the effect of the Bankruptcy and Equity Exception.
As of the date of this Agreement, there are no conditions precedent related to the funding or investing, as applicable, of the
full amount of the Debt Financing or the full amount of the Equity Financing contemplated by the Equity Commitment Letter other
than as expressly set forth in the Debt Commitment Letter or the Equity Commitment Letter, as applicable. As of the date of this
Agreement, (i) BidCo is not in default or breach under the terms and conditions of the Commitment Letters and (ii) to
the knowledge of BidCo, no event has occurred which, with or without notice, lapse of time or both, would (1) constitute
a default or breach on the part of BidCo under any of the Commitment Letters, (2) constitute a failure to satisfy a condition
on the part of BidCo under the Commitment Letters, or (3) assuming the representations and warranties set forth in Article III
and as made by the Company are true and correct in all material respects, otherwise result in any portion of the Financing required
to satisfy the Financing Uses being unavailable on the Effective Date. As of the date of this Agreement, assuming the satisfaction
or waiver of the conditions to BidCo’s obligations to consummate the Acquisition, BidCo has no reason to believe that any
of the conditions to the Financing contemplated by the Commitment Letters will not be satisfied on or prior to the Effective Date
or that the full amount of the Financing required to satisfy the Financing Uses will not be made available to BidCo on the Effective
Date. Assuming the Financing is funded or invested in accordance with the Commitment Letters, BidCo will have on the Effective
Date funds sufficient to (x) pay the Cash Consideration, (y) prepay or repay any outstanding indebtedness of the Company
or its subsidiaries required by this Agreement to be prepaid or repaid and (z) satisfy all of the other payment obligations
required to be paid on the Effective Date by BidCo hereunder in connection with the transactions contemplated hereby (clauses
(x), (y) and (z), the “Financing Uses”).
Section 4.9 BidCo
Guarantee. BidCo has furnished the Company with a true, complete and correct copy of the BidCo Guarantee. The BidCo
Guarantee is in full force and effect (assuming the due authorization, execution and delivery thereof by the other parties thereto).
The BidCo Guarantee constitutes the valid and binding obligation of the Guarantors and is enforceable in accordance with its terms
subject to the Bankruptcy and Equity Exception.
Section 4.10 Vote/Approval
Required. No vote or consent of the holders of any class or series of share capital of BidCo or any of its Affiliates
is necessary to approve this Agreement or the transactions contemplated hereby, including the Acquisition.
Section 4.11 Solvency.
Assuming that (a) the conditions to the obligation of BidCo to consummate the Acquisition set forth in Section 7.1
and Section 7.2 have been satisfied or waived and (b) the representations and warranties of the Company in
Article III are accurate and complete (without giving effect to any “materiality,” “Material Adverse
Effect” or similar qualifiers contained in any such representations and warranties), then immediately following the Effective
Date and after giving effect to all of the transactions contemplated by this Agreement, including the Financing, the payment of
the aggregate consideration to which the Company Shareholders are entitled under Article II, funding of any obligations
of the Company or its subsidiaries which become due or payable by the Company and its subsidiaries in connection with, or as a
result of, the Acquisition and payment of all related fees and expenses, (i) the fair value of the assets of the Company
and its subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of the Company and its subsidiaries on a consolidated basis, (ii) the present fair saleable value
of the property of the Company and its subsidiaries on a consolidated basis will be greater than the amount that will be required
to pay the probable liability of the Company and its subsidiaries on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (iii) the
Company and its subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured and (iv) the Company and its subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses
are now conducted and are proposed to be conducted following the Effective Date.
Section 4.12 Absence
of Certain Agreements. Except as authorized by the Company or as otherwise contemplated by this Agreement, as of the
date hereof, neither BidCo nor any of its subsidiaries has entered into any contract, arrangement or understanding, whether written
or oral, or authorized, committed or agreed to enter into any such contract, arrangement or understanding pursuant to which: (i) any
Company Shareholder would be entitled to receive consideration of a different amount or nature than the Cash Consideration or
pursuant to which any Company Shareholders agrees to vote to approve the Scheme or agrees to vote against any Superior Proposal
(except for certain irrevocable undertakings obtained from directors holding Company Shares) or (ii) any current executive
officer of the Company has agreed to remain as an executive officer of the Company or any of its subsidiaries following the Effective
Date at compensation levels in excess of levels currently in effect (other than pursuant to any employment contracts with the
Company and its subsidiaries in effect as of the date hereof).
Section 4.13 No
Other Information. Except for the representations and warranties contained in Article III or in the case
of fraud, BidCo acknowledges and agrees that no representation or warranty of any kind whatsoever, express or implied, at Law
or in equity, is made or shall be deemed to have been made by or on behalf of the Company to BidCo, and the Company hereby disclaims
any such representation or warranty, whether by or on behalf of the Company, and notwithstanding the delivery or disclosure to
BidCo or its Representatives or Affiliates, of any documentation or other information by the Company or any of its respective
Representatives or affiliates with respect to any one (1) or more of the foregoing. For the avoidance of doubt, the foregoing
shall not operate to limit or invalidate any representation or warranty contained in any other Transaction Document.
Article V
CONDUCT
OF BUSINESS PENDING THE ACQUISITION
Section 5.1 Conduct
of Business of the Company Pending the Acquisition. From the date of this Agreement until the earlier of the Effective
Date and the valid termination of this Agreement in accordance with Article VIII, except (1) as otherwise expressly
required or expressly permitted by this Agreement, (2) as expressly set forth in Section 5.1(a) of the Company
Disclosure Letter, (3) as required by applicable Law or (4) as BidCo shall otherwise expressly consent in writing (such
consent not to be unreasonably withheld, delayed or conditioned), (a) the Company shall, and the Company shall cause each
of its subsidiaries to, (I) conduct its and their businesses in the ordinary course of business and (II) use its and
their commercially reasonable efforts to operate its and their businesses in compliance with all applicable Law and preserve intact
its and each of its subsidiaries’ material business organizations, to keep available the services of its and their officers
and employees and to preserve in all material respects the relationships with Governmental Entities, customers, suppliers, distributors,
creditors, and lessors and other Persons with which the Company or its subsidiaries have material business or regulatory relationships
and (b) without limiting the foregoing, the Company shall not, and the Company shall cause each of its subsidiaries not to:
(i) other
than in connection with the Scheme, amend, adopt any amendment or otherwise alter or change (whether by merger, division, consolidation,
scheme, share exchange, business combination or otherwise) its Certificate of Incorporation or Articles of Association or other
applicable organizational or governing documents;
(ii) make
any acquisition of (whether by merger, division, consolidation, scheme, share exchange, business combination, acquisition of securities
or assets or otherwise), or make any investment in any interest in, any business or any corporation, partnership or other business
organization or division thereof or any property or assets, in each case, except for purchases of inventory and other assets in
the ordinary course of business or pursuant to existing Contracts as of the date hereof; provided, however, that
this Section 5.1(b)(ii) shall not permit the Company or any of its subsidiaries to acquire the share capital
or other equity interests of any other Person;
(iii) issue,
sell, grant, authorize, pledge, encumber or dispose of (or authorize the issuance, sale, grant, authorization, pledge, encumbrance
or disposition of), any shares of share capital, voting securities or other ownership interest, or any options, warrants, convertible
securities or other rights of any kind to acquire or receive, or that are convertible into or exchangeable or exercisable for,
any shares of share capital, voting securities or other ownership interest (including stock appreciation rights, phantom stock
or similar instruments) of the Company or any of its subsidiaries or, take any action to cause to be exercisable any otherwise
unexercisable Option, except for the issuance of Company Shares upon the exercise, vesting or settlement of Options or Company
RSUs or Company PSUs in accordance with their terms as of the date hereof and the issuance of Options, Company RSUs and Company
PSUs in respect of annual awards for calendar year 2021 made in the ordinary course of business consistent in magnitude and allocation
between the type of such award with the annual grants made in respect of calendar year 2020;
(iv) reclassify,
combine, split, reverse split, consolidate, recapitalize, subdivide, redeem, purchase or otherwise acquire (excluding in connection
with the cashless exercise or cashless withholding in connection with the exercise of Options or settlement of Company RSUs and
Company PSUs to the extent permitted prior to the date of this Agreement) any shares of share capital or other ownership interests
of the Company or any of its subsidiaries (or any warrants, options or other rights to acquire the foregoing) or consummate or
authorize any other similar transaction with respect to shares of share capital or ownership interests of the Company or any of
its subsidiaries (or any warrants, options or other rights to acquire the foregoing) or issue, sell, grant, dispose or authorize
or propose the issuance, sale, grant or authorization of any of its or its subsidiaries’ shares of share capital or ownership
interests or any other securities (or any warrants, options or other rights to acquire the foregoing) in respect of, in lieu of
or in substitution for shares of its or its subsidiaries’ share capital, ownership interests or securities;
(v) create
or incur any Lien, other than Permitted Liens;
(vi) make
any loans, advances or capital contributions to, or investment in, any Person (other than the Company’s wholly owned subsidiaries
in the ordinary course of business and other than de minimis advances for expenses made to employees of the Company or any of
its subsidiaries in the ordinary course of business);
(vii) sell,
transfer or otherwise dispose of (whether by merger, division, consolidation, scheme, share exchange, disposition of securities
or assets, other business combination transaction or otherwise) any corporation, partnership or other business organization or
division thereof or otherwise sell, lease, assign, license, transfer, exchange, swap, abandon, mortgage, pledge, hypothecate,
grant an easement with respect to, or otherwise encumber or restrict the use (including securitizations), or subject to any Lien
(other than Permitted Liens), allow to expire, or dispose of, in a single transaction or series of transactions, any assets (excluding
Owned Intellectual Property), rights or properties, other than sales, dispositions or licensing of equipment and/or inventory
and other assets in the ordinary course of business;
(viii) except
as would not have, or reasonably be expected to have, a Material Adverse Effect, sell, assign, transfer, lease, license or allow
to lapse any rights in any Owned Intellectual Property (other than licenses granted by the Company or any of its subsidiaries
to any of its vendors, suppliers, distributors or customers in the ordinary course of business);
(ix) enter
into, renew, terminate, or amend or modify in any material respect, a Lease, except in the ordinary course of business;
(x) declare,
set aside, establish a record date for, authorize, make or pay any dividend or other distribution, payable in cash, stock, property,
rights or otherwise, with respect to any of its or its subsidiaries’ share capital (except for any dividend or distribution
by a wholly owned subsidiary of the Company to the Company or any wholly owned subsidiary of the Company);
(xi) make
or authorize any capital expenditures (including customer acquisition costs and expenses) in excess of the amount set forth in
Section 5.1(b)(xi) of the Company Disclosure Letter;
(xii) enter
into, modify or amend in any material respect, or accelerate, terminate or cancel, any Material Contract or any Contract that
would have been required to be disclosed pursuant to Section 3.8(a) or Section 3.14(b) of this
Agreement (or any Contract that would be a Material Contract or that would have been required to be disclosed pursuant to Section 3.8(a) or
Section 3.14(b) of this Agreement if it were in effect as of the date of this Agreement) or waive any material
right to enforce, relinquish, release, transfer or assign any material rights or claims thereunder, in each case, other than in
the ordinary course of business;
(xiii) incur,
prepay, issue, syndicate, refinance, or otherwise become liable for, indebtedness for borrowed money (directly, contingently or
otherwise) (including any indebtedness under swap or hedge agreements), or modify the terms of any such indebtedness, or assume,
guarantee or endorse the obligations of any Person in respect of such indebtedness, other than (1) indebtedness for borrowed
money or guarantees thereof incurred in the ordinary course of business pursuant to agreements in effect as of the date hereof,
disclosed on Section 5.1(b)(xiii) of the Company Disclosure Letter, (2) indebtedness for borrowed money
not to exceed $3,000,000 in aggregate principal amount outstanding at any time incurred by the Company or any if its subsidiaries,
(3) borrowings under the Company’s Revolving Credit Facility and (4) intercompany loans between the Company and
any of its wholly owned subsidiaries or between any subsidiaries of the Company;
(xiv) except
as required by applicable Law, any Company Plan or other Contract as in effect on the date hereof and disclosed in Section 3.11(a) of
the Company Disclosure Letter, (A) increase the compensation or benefits payable or provided to any current or former director,
officer, employee or independent contractor of the Company or any of its subsidiaries other than in connection with reversing
any decreases in compensation or benefits in connection with the COVID-19 Response, (B) grant any severance or termination
pay not required under any Company Plan, (C) enter into any employment, change of control, retention, consulting or severance
agreement or arrangement (for the avoidance of doubt, including any offer letter) with any current or former director, officer,
employee or independent contractor of the Company or any of its subsidiaries other than in connection with new hires or promotions
in the ordinary course of business whose annual base compensation does not exceed $200,000, (D) hire any employee or independent
contractor whose annual base compensation exceeds $200,000, (E) amend (other than amendments that are immaterial individually
or in the aggregate) or terminate any, or enter into or adopt any new, Company Plan or any other plan, trust, fund, policy, agreement
or arrangement that would be a Company Plan for the benefit of any current or former directors, officers, employees or independent
contractors of the Company or any of its subsidiaries other than (1) as permitted by subsections (A) and (C), or (2) in
connection with health benefit plan renewals in the ordinary course of business, (F) take any action to fund the payment
of compensation or benefits under any Company Plan, (G) adopt, enter into, amend or terminate any collective bargaining agreement
or other similar arrangement relating to Union or organized employees, (H) take any action to accelerate the vesting or payment
of any compensation or benefit (including in respect of Options, Company RSUs and Company PSUs) under any Company Plan or awards
made thereunder, (I) except as permitted under clause (iii) above, grant any equity or equity based award or (J) materially
change any assumptions used to calculate funding or contribution obligations under any Company Plan, other than as required by
GAAP;
(xv) make
any material change in any accounting policies, procedures, principles or practices or any methods of reporting income, deductions
or other material items for accounting purposes, except as may be required by GAAP or applicable Law;
(xvi) (A) make
any material change to any method of Tax accounting, (B) make or change any material Tax election, (C) surrender any
claim for a refund of material Taxes, offset or other reduction in Tax liability, (D) file any material amended Tax Return,
(E) fail to pay any material Taxes as they become due and payable, (F) enter into any “closing agreement”
within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to
any material Taxes, (G) surrender, agree, settle or compromise any material Tax liability or any audit or proceeding relating
to a material amount of Taxes or (H) take or omit to take any other action, if any such action or omission would have the
effect of materially increasing the Tax liability or accrual of Tax liability under FASB Interpretation No. 48 or materially
reducing any Tax asset or accrual of Tax asset under FASB Interpretation No. 48 of the Company or any of its subsidiaries;
(xvii) fail
to use its reasonable best efforts to obtain any and all information regarding any material Tax audit, examination, investigation
or other proceeding to which it is entitled pursuant to any Tax sharing agreement, or fail promptly to notify BidCo, in reasonable
detail, regarding any such information so obtained;
(xviii) waive,
release, assign, settle or compromise any Action, Transaction Litigation or other claim, liability or obligation, whether absolute,
accrued, asserted or unasserted, contingent or otherwise against the Company or any of its subsidiaries or any of their respective
directors or officers, other than (A) in the ordinary course of business (except with respect to Transaction Litigation),
(B) where the amount paid or to be paid does not exceed $1,500,000 individually (including any single or aggregated claims
arising out of the same or similar facts, events or circumstances) or $3,000,000 in the aggregate (determined, in each case, net
of insurance proceeds) or (C) where the amount thereof is paid or reimbursed to the Company or its subsidiaries by an insurance
policy, in each of clauses (A), (B) or (C), only without the imposition of equitable relief on, or the admission of wrongdoing
by, the Company or any of its subsidiaries or any of their respective officers or directors;
(xix) enter
into or make any loans to any of its officers, directors, employees, agents or consultants (other than in connection with a defined
contribution retirement plan or de minimis advances of business expenses in the ordinary course of business), or make any change
in its existing borrowing or lending arrangements for or on behalf of any such Persons, except as disclosed in Section 5.1(b)(xix) of
the Company Disclosure Letter;
(xx) grant
any material refunds, credits, rebates or other allowances to any supplier, vendor, distributor or franchisee, other than in the
ordinary course of business;
(xxi) except
as may be required by applicable Law or applicable organizational documents, convene any special meeting (or any adjournment thereof)
of the Company Shareholders other than the Company Shareholders Meetings;
(xxii) enter
into any agreement or understanding or arrangement or other Contract with respect to the voting or registration of the shares
of the Company’s or its subsidiaries’ share capital or other securities, equity interests or ownership interests;
(xxiii) renew
or enter into any non-compete, exclusivity, non-solicitation, “most favored nation” or similar provision or agreement
or Contract that would restrict or limit the operations of the Company and its Affiliates or the Company or its Affiliates after
the Effective Date;
(xxiv) enter
into any new line of business outside of its existing business as of the date hereof, other than as contemplated in ordinary course
business plans as of the date hereof and as made available by the Company to BidCo;
(xxv) fail
to maintain in full force and effect existing insurance policies that, individually or in the aggregate, are material to the Company
and its subsidiaries, taken as a whole; provided, that in the event of a termination, cancellation or lapse of any material
insurance policies, it shall promptly obtain replacement policies providing insurance coverage with respect to the material assets,
operations and activities of the Company and its subsidiaries as currently in effect as of the date hereof;
(xxvi) adopt
a plan of agreement of complete or partial liquidation or dissolution, merger, division, consolidation, restructuring, recapitalization
or other reorganizational document;
(xxvii) enter
into, amend, waive or terminate (other than terminations in accordance with their terms) any Company Affiliate Transaction;
(xxviii) enter
into or adopt any “poison pill” or similar company shareholder rights plan; or
(xxix) agree,
resolve, authorize or commit, in writing or otherwise, to do or take any of the foregoing actions described in Section 5.1(b)(i) through
Section 5.1(b)(xxviii).
Any deviations from the ordinary course of business of the Company
or any of its subsidiaries or any action or conduct by the Company or any of its subsidiaries, in each case reasonably necessary
(but solely to the extent supported by documentation, information, data, or other evidence reasonably substantiating the necessity
of such actions or conduct as determined by the Company in good faith) (x) to protect the health and safety of the Company’s
or its subsidiaries’ employees and other individuals having business dealings with the Company or any of its subsidiaries
in response to, (y) to respond to third-party supply or service disruptions caused by COVID-19, SARS-CoV-2 virus or any mutation
or variation thereof on the business of the Company or any of its subsidiaries or (z) to respond to the direct impact of the
global pandemic relating to COVID-19, SARS-CoV-2 virus or any mutation or variation thereof on the Company and its subsidiaries,
taken as a whole (any such action or conduct, the “COVID-19 Response”), including complying with “shelter
in place” and non-essential business orders by any Governmental Entity of competent jurisdiction, that would otherwise be
in breach of this Section 5.1, shall be deemed not to be a breach of this Section 5.1.
Section 5.2 No
Control of Other Party’s Business. Without limiting in any way any party’s rights or obligations under
this Agreement (including Section 5.1), nothing contained in this Agreement shall give BidCo, directly or indirectly,
the right to control or direct the Company’s or its subsidiaries’ operations prior to the Effective Date, and nothing
contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct BidCo’s or its
subsidiaries’ operations prior to the Effective Date. Prior to the Effective Date, each of the Company and BidCo shall exercise,
consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’
respective operations.
Article VI
ADDITIONAL
AGREEMENTS
Section 6.1 Acquisition
Proposals.
(a) Except
as expressly permitted by Section 6.1(b), from the date of this Agreement until the Effective Date or, if earlier,
the valid termination of this Agreement in accordance with Section 8.1, the Company shall not, and shall cause each
of its subsidiaries and its and its subsidiaries’ respective officers, directors and employees not to, and shall use its
reasonable best efforts to cause its and their other respective Representatives not to, (i) initiate, solicit or knowingly
encourage or facilitate any inquiries, proposals or offers with respect to, or the making of, or that could reasonably be expected
to lead to, any Acquisition Proposal, or the consummation thereof, (ii) enter into, continue or otherwise participate or engage
in, facilitate or encourage, any negotiations or discussions concerning, or that could reasonably be expected to lead to, an Acquisition
Proposal, or provide access to its properties, books and records or any information or data to any Person relating to an Acquisition
Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal,
(iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any
Person (other than BidCo) with respect to the Company or any of its subsidiaries, (v) take any action to make the provisions
of any Takeover Law, or any restrictive provision of any applicable anti-takeover provision in the Certificate of Incorporation
or Articles of Association, inapplicable to any transactions contemplated by any Acquisition Proposal, (vi) execute or enter
into any merger agreement, acquisition agreement or other similar definitive agreement with respect to any Acquisition Proposal
or (vii) authorize any of, or commit or agree to do any of, the foregoing. The Company shall, and shall cause each of its
subsidiaries and its and its subsidiaries’ respective officers, directors and employees to, and shall use its reasonable
best efforts to cause its and their other respective Representatives to, immediately cease, (x) any solicitations, discussions,
communications or negotiations with any Person (other than the Parties) in connection with an Acquisition Proposal, in each case
that exist as of the date hereof and (y) all access of any Person (other than the Parties and their respective Representatives)
to any electronic data room maintained by the Company with respect to the transactions contemplated by this Agreement. The Company
also agrees that it will promptly (and in any event within two (2) Business Days) deliver a written notice to each such Person
to the effect that the Company is ending all such solicitations, discussions, communications and negotiations with such Person,
effective immediately, which written notice shall also request each Person (other than the Parties) that has prior to the date
hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company to promptly return or
destroy all non-public information furnished to such Person by or on behalf of it or any of its subsidiaries prior to the date
hereof.
(b) Notwithstanding
anything in this Agreement to the contrary, if prior to obtaining the Company Requisite Vote the Company receives a bona fide written
Acquisition Proposal from any Person that did not result from a breach of Section 6.1(a), the Company, subject to compliance
with this Section 6.1, may provide non-public information and data concerning the Company and its subsidiaries in response
to a request therefor by such Person and may engage or participate in any discussions or negotiations with such Person if (i) the
Company shall have received from such Person a confidentiality agreement on customary terms not materially more favorable to such
Person than those contained in the Confidentiality Agreement and which confidentiality agreement does not restrict in any manner
the Company’s ability to perform its obligations under this Agreement (an “Acceptable Confidentiality Agreement”)
and provided that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) provide to BidCo any material
non-public information concerning the Company or its subsidiaries that the Company provided or made available to any Person given
such access which was not previously made available to BidCo, and (ii) prior to taking any such action (and as a condition
thereto), (A) the Board shall have determined in good faith (after consultation with its outside legal counsel) that failure
to take such action would violate the Board’s fiduciary duties under applicable Law, and (B) the Board shall have determined
in good faith (after consultation with its outside legal counsel and financial advisor) that such Acquisition Proposal either constitutes
a Superior Proposal or would reasonably be expected to result in a Superior Proposal. The Company shall promptly (and in any event
within twenty-four (24) hours) deliver to BidCo a written notice (a “Company Notice”) of the receipt after the
date hereof of any Acquisition Proposal, or any inquiry, proposal or offer in respect of an Acquisition Proposal, including any
modification, amendment or supplement thereto, which notice shall include a copy of such Acquisition Proposal, or such inquiry,
proposal or offer in respect of an Acquisition Proposal, made in writing and any written documents or materials relating thereto
(including any documents or materials relating to the financing thereof), a written summary of the material terms of such Acquisition
Proposal, or such inquiry, proposal or offer in respect of an Acquisition Proposal, not made in writing, and the identity of the
Person making such Acquisition Proposal or such inquiry, proposal or offer in respect of an Acquisition Proposal. Without limiting
the foregoing, it is agreed that any violation of the restrictions or obligations set forth in this Section 6.1 by
any subsidiary of the Company or any Representative of the Company or any of its subsidiaries acting on behalf of the Company shall
be a breach of this Section 6.1 by the Company and any breach of this Section 6.1 by the Company or any
of the foregoing shall be deemed a Willful Breach of this Agreement by the Company.
(c) Nothing
contained in this Agreement shall prevent the Company or the Board from taking and disclosing to its Company Shareholders a position
contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to
Company Shareholders in connection with the making or amendment of a tender offer or exchange offer), making any “stop-look-and-listen”
communication to the Company Shareholders pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications
to the Company Shareholders) or from making any legally required disclosure to Company Shareholders with regard to the transactions
contemplated by this Agreement or an Acquisition Proposal (provided, that the Company expressly publicly reaffirms the Recommendation
in such disclosure).
(d) For
purposes of this Agreement, “Acquisition Proposal” means any proposal or offer from any Person (other than BidCo
or its Affiliates) relating to any direct or indirect acquisition or purchase of a business that constitutes fifteen percent (15%)
or more of the net revenues, net income or assets of the Company and its subsidiaries, taken as a whole, or fifteen percent (15%)
or more of the total voting power of the equity securities of the Company, any tender offer or exchange offer that if consummated
would result in any Person beneficially owning fifteen percent (15%) or more of the total voting power of the equity securities
of the Company, or any merger, division, reorganization, consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company (or any subsidiary or subsidiaries of the Company whose business
constitutes fifteen percent (15%) or more of the net revenues, net income or assets of the Company and its subsidiaries, taken
as a whole).
Section 6.2 No
Change of Recommendation; Exception to No Change of Recommendation.
(a) Except
as set forth in Section 6.2(b), the Board shall not take any of the any of the below actions:
(i) fail
to recommend against any Acquisition Proposal, including any Acquisition Proposal subject to Regulation 14D under the Exchange
Act in a Solicitation/Recommendation Statement on Schedule 14D-9, within ten (10) Business Days after the commencement of
such Acquisition Proposal (it being understood and agreed that a customary “stop, look and listen” communication by
the Board to the Company Shareholders in accordance with Rule 14d-9(f) of the Exchange Act, or any similar communication
to the Company Shareholders in connection with the commencement of a tender offer or exchange offer, shall not be deemed to constitute
a Change of Recommendation; provided, that the Board expressly publicly reaffirms the Recommendation in such communication);
(ii) fail
to include the Recommendation in the Proxy Statement and the Circular or otherwise modify, change, qualify, withdraw or withhold
the Recommendation;
(iii) make
any statement to any Person beneficially owning five percent (5%) or more of the outstanding Company Shares or any public statement
in connection with the Court Meeting or the General Meeting, in each case that is inconsistent with the Recommendation;
(iv) approve,
recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Acquisition Proposal;
(v) approve,
recommend, declare advisable or fail to recommend against, or propose to approve, recommend or declare advisable, or allow the
Company to execute or enter into any Contract with respect to any Acquisition Proposal or that would require, or would reasonably
be expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede,
interfere with or be inconsistent with, the transactions contemplated by this Agreement, including the Acquisition;
(vi) fail
to issue a press release that reaffirms the Recommendation as promptly as practicable after receipt of a written request to do
so from BidCo following public disclosure of an Acquisition Proposal (but in any event within four (4) Business Days after
such request to do so by BidCo or, if either of the Company Shareholders Meetings is scheduled to occur prior to such fourth (4th)
Business Day, within twenty-four (24) hours after such written request (and in any event prior to such meeting));
(vii) approve
or recommend, or publicly declare advisable, any Acquisition Proposal or other proposal that would reasonably be expected to lead
to an Acquisition Proposal or approve or recommend, or publicly declare advisable or publicly propose to enter into, any Alternative
Acquisition Agreement;
(viii) authorize
the Company or any of its subsidiaries to enter into any agreement, arrangement or understanding with respect to any Acquisition
Proposal (other than an Acceptable Confidentiality Agreement), or require the Company to abandon or terminate or fail to consummate
the Acquisition; or
(ix) agree,
authorize or commit, or publicly propose or announce an intention, to do any of the foregoing.
(b) Notwithstanding
anything to the contrary set forth in Section 6.2(a), prior to obtaining the Company Requisite Vote, in the event of,
and with respect to, an Intervening Event or a Superior Proposal not arising out of a breach of Section 6.1, the Board
may (i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the
Recommendation, (ii) fail to include the Recommendation in the Proxy Statement or the Circular or (iii) approve, recommend
or otherwise declare advisable (or propose publicly to approve, recommend or otherwise declare advisable) any Superior Proposal
made after the date hereof (any of (i), (ii) or (iii), a “Change of Recommendation”) and may also terminate
this Agreement pursuant to Section 8.1(e)(ii) if the Board determines in good faith, after consultation with its
outside legal counsel, that failure to make such Change of Recommendation or terminate this Agreement pursuant to Section 8.1(e)(ii) in
response to such Superior Proposal would violate the Board’s fiduciary duties under applicable Law; provided, however,
that the Company shall not effect a Change of Recommendation or terminate this Agreement pursuant to Section 8.1(e)(ii) unless:
(x) the Company shall have notified BidCo in writing, at least five (5) Business Days in advance (it being understood
that any material change in respect of any such Intervening Event or Superior Proposal shall require a new notice but with an additional
three (3) Business Days (instead of five (5) Business Days) notice period) (the “Notice Period”),
that it intends to effect a Change of Recommendation or to terminate this Agreement pursuant to Section 8.1(e)(ii),
which notice shall, (I) with respect to a Superior Proposal, specify the identity of the party who made such Superior Proposal
and all of the material terms and conditions of such Superior Proposal and shall include all written documents and materials relating
thereto (including any documents or materials relating to the financing thereof) and the most current version of the agreement
relating thereto (if such agreement has been provided to the Company) or (II) with respect to an Intervening Event, state
that an Intervening Event has occurred and provide all the details of such Intervening Event and the basis upon which the Board
believes such an effect constitutes an Intervening Event giving rise to a Change of Recommendation rights hereunder, all with reasonable
specificity; (y) after providing such notice and prior to making such Change of Recommendation or terminating this Agreement
pursuant to Section 8.1(e)(ii), the Company shall negotiate in good faith with BidCo during the Notice Period (to the
extent that BidCo desires to negotiate) to make such revisions to the terms of this Agreement as would permit the Board not to
effect a Change of Recommendation or terminate this Agreement pursuant to Section 8.1(e)(ii); and (z) the Board
shall have considered in good faith any changes to this Agreement offered in writing by BidCo in a manner that would obviate the
need for such Change of Recommendation and shall have determined in good faith, after consultation with its outside legal counsel
and financial advisor, that failure to effect such Change of Recommendation or terminate this Agreement pursuant to Section 8.1(e)(ii),
as applicable, would still violate the Board’s fiduciary duties under applicable Law and, with respect to a Superior Proposal,
determined in good faith that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in
writing by BidCo were to be given effect; provided, that, for the avoidance of doubt, the Company shall not effect a Change
of Recommendation or terminate this Agreement pursuant to Section 8.1(e)(ii) prior to the expiration of the Notice
Period.
(c) Without
limiting the foregoing, it is agreed that any violation of the restrictions or obligations set forth in this Section 6.2
by the Board, any subsidiary of the Company or any Representative of the Company or any of its subsidiaries shall be a breach of
this Section 6.2 by the Company and any breach of this Section 6.2 by the Company or any of the foregoing
shall be deemed a Willful Breach of this Agreement by the Company.
Section 6.3 Proxy
Statement and Circular; Scheme Documentation, Information and Undertakings.
(a) BidCo
shall provide promptly to the Company all such information about itself, the BidCo Group and the BidCo directors and their concert
parties required by (i) the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the
Proxy Statement and (ii) CA 2006 or as otherwise may reasonably be requested by the Company for the purpose of inclusion in
the Circular or any other Scheme Documentation (“BidCo Information”) and to provide such other cooperation and
assistance as may reasonably requested by the Company in connection with the preparation of each of the Proxy Statement and the
Scheme Documentation; provided, that the Company submits, or causes the submission of, drafts and revised drafts of each
of the Proxy Statement and the Circular to BidCo for review and considers comments reasonably proposed by BidCo in relation thereto.
BidCo will cause BidCo’s directors to accept responsibility for all of the information in each of the Proxy Statement and
the Circular relating to BidCo or any of its Affiliates and their respective personnel (including the BidCo Information), any statement
of opinion, belief or expectation of the directors of BidCo in relation to the Acquisition and the financing of the Acquisition
(collectively, the “BidCo Responsibility Information”).
(b) None
of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in each of the Proxy Statement
and the Circular will, at the date the Proxy Statement or the Circular, as applicable, is first mailed to the Company Shareholders,
or at the time of the General Meeting, contain any untrue statement of a material fact, or omit to state any material fact necessary
in order to make the statements made therein not false or misleading in light of the circumstances under which they are made. Each
of the Proxy Statement and the Circular will comply as to form with the requirements of the Exchange Act and the rules and
regulations thereunder, and CA 2006, other than any failure to comply that is de-minimis in nature. No representation is made by
the Company with respect to statements made or incorporated by reference therein based on BidCo Information supplied by or on behalf
of any member of the BidCo Group for inclusion or incorporation by reference therein. The Company will cause the directors on the
Board (other than any director whom the Company considers to have a conflict of interest in relation to the Acquisition) to accept
responsibility for all information in the Proxy Statement and the Circular (other than the BidCo Responsibility Information).
(c) The
Company shall, with the assistance of BidCo, prepare and file with the SEC, as promptly as reasonably practicable after the date
of this Agreement (and in any event within fifteen (15) Business Days of the date of this Agreement or such later date as the Parties
agree in writing), each of the Proxy Statement and the Circular (including a Rule 13e-3 Transaction Statement on Schedule
13e-3, if applicable). BidCo and the Company will cooperate with each other in the preparation of each of the Proxy Statement and
the Circular. Subject to Section 6.2(b), the Company will cause each of the Proxy Statement and the Circular to include
the unanimous recommendation of all of the directors on the Board (other than any director whom the Company considers to have a
conflict of interest in relation to the Acquisition) to the Company Shareholders to vote in favor of the resolutions at the Court
Meeting and the General Meeting (the “Recommendation”). The Scheme will not cover the Excluded Shares (including,
for the avoidance of doubt, the Company Shares that will be acquired by BidCo or its designee(s) pursuant to the Contribution
Agreement). The conditions to the Scheme set out in the Proxy Statement or the Circular shall be the same as the conditions set
out in Section 7.1, Section 7.2 and Section 7.3.
(d) Subject
to applicable Law, and anything in this Agreement to the contrary notwithstanding, prior to the filing of each of the Proxy Statement
and the Circular or the filing of any other required filings (or, in each case, any amendment or supplement thereto), or any dissemination
thereof to the Company Shareholders, or responding to any comments from the SEC with respect thereto, the Company shall provide
BidCo and its counsel with a reasonable opportunity to review and to comment on such document or response, and the Company shall
consider in good faith and take into account in such filing, document or response any comments reasonably proposed by BidCo and
its Representatives. The Company shall promptly notify BidCo upon the receipt of any comments from the SEC or its staff or any
request from the SEC or its staff for amendments or supplements to the Proxy Statement or the Circular and shall provide BidCo
with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other
hand, relating to the Proxy Statement or the Circular. The Company shall use its commercially reasonable efforts to resolve all
SEC comments with respect to each of the Proxy Statement and the Circular as promptly as practicable after receipt thereof. The
Company shall cause each of the Proxy Statement and the Circular to be mailed to Company Shareholders as of the record date established
for the Company Shareholders Meetings promptly after (x) the date the SEC staff advises that it has no further comments thereon
or that the Company may commence mailing the Proxy Statement and (y) the Court has given the Company leave to convene the
Court Meeting.
(e) If
at any time prior to the Company Shareholders Meetings there shall occur any event that should be set forth in an amendment or
supplement to either or both of the Proxy Statement and the Circular, or if any supplemental circular, proxy statement (or related
materials) or document is required to be published by the Company in connection with the Acquisition or, subject to the prior written
consent of BidCo, any variation or amendment to the Acquisition, the Company shall promptly after becoming aware thereof inform
BidCo in writing of such fact or event and prepare (with the assistance of BidCo) and, subject to the permission of the Court,
mail to the Company Shareholders such an amendment or supplement, in each case, to the extent required by applicable Law. Each
of the Company and BidCo agrees to promptly (i) correct any information provided by it specifically for use in either or both
of the Proxy Statement and the Circular if and to the extent that such information shall have become false or misleading in any
material respect and (ii) supplement the information provided by it specifically for use in either or both of the Proxy Statement
and the Circular to include any information that shall become necessary in order to make the statements in the either or both of
the Proxy Statement and the Circular, as applicable, in light of the circumstances under which they were made, not misleading.
The Company further agrees to cause either or both of the Proxy Statement and the Circular, as applicable, as so corrected or supplemented
promptly to be filed with the SEC and, subject to the permission of the Court, to be disseminated to its Company Shareholders,
in each case as and to the extent required by applicable Law.
(f) The
Company shall, subject to applicable Law:
(i) prior
to the General Meeting and the Court Meeting, keep BidCo reasonably informed of the number of proxy votes received in respect of
the resolutions to be proposed at the General Meeting and the Court Meeting and to provide BidCo with details of any material changes
to the Company’s shareholder and other statutory registers which occur prior to the Effective Date as promptly as reasonably
practicable;
(ii) cooperate
with and provide such details to BidCo and its advisers in relation to the Company Share Plans and awards thereunder as BidCo or
its advisers may reasonably request and to communicate with participants of the Company Share Plans as reasonably necessary or
desirable to implement the Acquisition in the manner contemplated by this Agreement;
(iii) coordinate
with BidCo for the purpose of obtaining any Tax clearances that BidCo may reasonably require to be obtained in connection with
the Scheme and the Acquisition, to provide drafts of any such application for clearance and take into account BidCo’s reasonable
comments and not to dispatch any application for such clearance without the prior written consent of BidCo;
(iv) provide,
and cause each of its subsidiaries to provide, promptly to BidCo and its advisers such information, documentation and access to
the management, employees, facilities and assets of such subsidiary and its advisers and independent auditors as is reasonably
requested by BidCo for the purposes of implementing the Acquisition and preparing or making any filing, notification or submission
with a Governmental Entity in connection with the Acquisition; and
(v) take
any action not otherwise contemplated under this Agreement that is reasonably requested by BidCo to implement the Acquisition.
Section 6.4 Company
Shareholders Meetings. The Company, acting through the Board (or a duly empowered committee thereof), shall, as promptly
as reasonably practicable following (x) confirmation by the SEC that the SEC has no further comments on the Proxy Statement
and (y) the Court giving the Company leave to convene the Court Meeting, take all action required under CA 2006 and the Articles
of Association and the applicable requirements of Nasdaq necessary to promptly and duly call, give notice of, convene and hold
as promptly as practicable the General Meeting and the Court Meeting (including any adjournment or postponement thereof, the “Company
Shareholders Meetings”), with the meeting date of the Company Shareholders Meetings and the Voting Record Time to be
selected after reasonable consultation with BidCo (it being expected that the General Meeting will be held as soon as the preceding
Court Meeting shall have been concluded and, if the Court Meeting is adjourned, the General Meeting shall be correspondingly adjourned);
provided, that the Company may postpone, recess or adjourn such meeting (i) to the extent required by Law or the Court
or otherwise necessary for bona fide security reasons or a physical event outside of the Company's control which renders
the holding of either or both of the Company Shareholders Meetings impossible or impracticable, (ii) with the written consent
of BidCo, (iii) to allow additional time to solicit additional proxies in order to obtain the Company Requisite Vote, (iv) in
the absence of a quorum or (v) to allow reasonable additional time for the filing and mailing of any supplemental or amended
disclosure which (A) is ordered by the Court or (B) the Board has determined in good faith after consultation with outside
legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed
by the Company Shareholders prior to the Company Shareholders Meetings. Subject to Section 6.2(b), the Company, acting
through the Board (or a duly empowered committee thereof), shall (a) make the Recommendation and include in each of the Proxy
Statement and the Circular the Recommendation, (b) issue a press release that reaffirms the Recommendation as promptly as
practicable after receipt of a written request to do so from BidCo following public disclosure of an Acquisition Proposal (but
in any event within four (4) Business Days after such written request to do so by BidCo or, if either of the Company Shareholders
Meetings is scheduled to occur prior to such fourth (4th) Business Day, within twenty-four (24) hours after such written request
or such disclosure (and in any event prior to such meeting)), and (c) use its reasonable efforts to solicit from the Company
Shareholders proxies to obtain the Company Requisite Vote. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall submit this Agreement and the transactions contemplated hereby to the Company Shareholders at the Company Shareholders
Meetings and shall not submit any alternate Acquisition Proposal for adoption by the Company Shareholders unless this Agreement
has been validly terminated in accordance with its terms.
Section 6.5 Further
Action; Efforts.
(a) Subject
to the terms and conditions of this Agreement, each Party will use its best efforts to (and, in the case of BidCo, use its best
efforts to cause each of its subsidiaries and Affiliates (collectively, the “BidCo Group”) to) take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations
to consummate the Acquisition and the other transactions contemplated by this Agreement. In furtherance and not in limitation of
the foregoing, each Party hereto agrees to make (or cause to be made) an appropriate filing of a Notification and Report Form pursuant
to the HSR Act and the foreign antitrust and investment filings listed in Section 6.5(a) of the Company Disclosure
Letter with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) Business
Days of the date hereof with respect to any filing made pursuant to the HSR filing and as promptly as practicable for the other
filings listed in Section 6.5(a) of the Company Disclosure Letter and to supply as promptly as reasonably practicable
any additional information and documentary material that may be requested pursuant to the HSR Act or any Antitrust or Foreign Investment
Law and to take any and all other actions necessary, proper or advisable to cause the expiration or termination of the applicable
waiting periods under the HSR Act and to obtain approval required under any other Antitrust or Foreign Investment Law as soon as
practicable.
(b) BidCo,
on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 6.5(a) to
obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated by this Agreement
under the HSR Act or any other Antitrust or Foreign Investment Law, use its reasonable best efforts to (i) cooperate in all
respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry,
including any proceeding initiated by a private party; (ii) subject to applicable Law, furnish to the other party as promptly
as reasonably practicable all information required for any application or other filing to be made by the other party pursuant
to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other
Party of any substantive communication received by such party from, or given by such party to, the U.S. Federal Trade Commission
(the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other
U.S. or foreign Governmental Entity and of any substantive communication received or given in connection with any proceeding by
a private party, in each case regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the
other party promptly with copies of all correspondence, filings and communications between them and the FTC, the DOJ, or any other
Governmental Entity with respect to the transactions contemplated by this Agreement (other than Item 4(c) and Item 4(d) documents
and subject to adequate measures for protection of commercially and/or competitively sensitive information); (iv) respond
as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional
information or documentation that may be requested by the DOJ, FTC or by any other Governmental Entity in respect of such registrations,
declarations and filings or such transactions; and (v) permit the other Party to review any substantive communication given
by it to, and consult with each other in advance, and consider in good faith the other Party’s reasonable comments in connection
with, any communication, meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with
any proceeding by a private party, with any other Person; provided, that BidCo shall be solely responsible for the final
content of any substantive communications with any applicable Governmental Entity. For purposes of this Agreement, “Antitrust
or Foreign Investment Law” means the Sherman Antitrust Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act,
the Federal Trade Commission Act of 1914 and all other federal, state and foreign, if any, statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines and other Laws that are designed or intended to (i) prohibit, restrict or
regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger
or acquisition or (ii) review and approve investments made by entities based in other countries.
(c) No
Party shall independently participate in any substantive meeting or communication with any Governmental Entity in respect of any
such filings, investigation or other inquiry relating to Section 6.5(a) or Section 6.5(b) without
giving the other Parties sufficient prior notice of the meeting and, to the extent permitted by such Governmental Entity, the opportunity
to attend and/or participate in such substantive meeting or communication. Notwithstanding anything to the contrary set forth in
this Agreement, and in furtherance and not in limitation of the foregoing, BidCo shall, and shall cause its Affiliates and subsidiaries
to, take any and all steps necessary to (x) resolve, avoid, or eliminate impediments or objections, if any, that may be asserted
with respect to the transactions contemplated by this Agreement under any Antitrust or Foreign Investment Law or (y) avoid
the entry of, effect the dissolution of, and have vacated, lifted, reversed or overturned, any decree, order or judgment that would
prevent, prohibit, restrict or delay the consummation of the contemplated transactions, so as to enable the Parties to close the
contemplated transactions expeditiously (and, for the avoidance of doubt, so as to avoid an in-depth or second-phase review by
the relevant Governmental Entity) (but in no event later than the End Date), including, but without limiting the foregoing, (i) proposing,
negotiating, committing to and effecting, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition,
or license of any assets, properties, products, rights, services or businesses of BidCo, BidCo’s subsidiaries, BidCo’s
Affiliates, or the Company or its subsidiaries or any interest therein and (ii) otherwise taking or committing to take actions
that would limit BidCo’s, BidCo’s subsidiaries, BidCo’s Affiliates, or the Company’s or its subsidiaries’
freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses
of BidCo, BidCo’s subsidiaries, BidCo’s Affiliates, or the Company or its subsidiaries or any interest or interests
therein, provided that any such action is conditioned upon (and shall not be completed prior to) the consummation of the Acquisition
and the other transactions contemplated by this Agreement.
(d) Subject
to the obligations under Section 6.5(c), in the event that any administrative or judicial action or proceeding is instituted
(or threatened to be instituted) by a Governmental Entity or private party challenging the Acquisition or any other transaction
contemplated by this Agreement, or any other agreement contemplated hereby, each of BidCo and the Company shall, and BidCo shall
cause each member of the BidCo Group to, cooperate in all respects with each other and use its respective best efforts to contest
and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or
other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation
of the transactions contemplated by this Agreement.
(e) Neither
BidCo nor any of its Affiliates shall acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing
a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other
business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering
into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation would reasonably be
expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents
of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination
of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity seeking or entering an order
prohibiting the consummation of the transactions contemplated by this Agreement; or (iii) materially delay or prevent the
consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding
the foregoing, (i) BidCo shall direct, in consultation with the Company and after considering in good faith the Company’s
views, strategy and timing, proceedings and other activities with respect to seeking any actions, non-actions, terminations or
expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby (provided that
no Party may enter into a so-called timing agreement with any Governmental Entity without the consent of the other Party), (ii) the
Company shall, and shall cause each of its subsidiaries to, use reasonable best efforts to take such actions as reasonably requested
by BidCo in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents,
approvals or waivers and (iii) BidCo shall have the sole and exclusive right, in consultation with the Company and after considering
in good faith the Company’s views, to propose, negotiate, offer or commit to make or effect any divestitures, dispositions
or licenses of any assets, properties, products, rights, services or businesses, or to agree to any other remedy, requirement,
obligation, condition or restriction related to the conduct of BidCo’s and its HSR Affiliates’ (as such term is defined
by the HSR Act) or the Company’s and its subsidiaries’ businesses in order to resolve any Governmental Entity’s
objections to or concerns about the transactions contemplated by this Agreement.
(g) Notwithstanding
the foregoing, commercially and/or competitively sensitive information and materials of a Party will be provided to the other Party
on an outside counsel-only basis (or by otherwise taking appropriate steps to safeguard the information and comply with applicable
Law) while, if requested in writing by the other Party and to the extent feasible, making a version in which the commercial and/or
competitively sensitive information has been redacted available to the other Party.
Section 6.6 Notification
of Certain Matters. The Company shall give prompt notice to BidCo, and BidCo shall give prompt notice to the Company,
of (a) any notice or other communication received by such Party from any Governmental Entity in connection with the Acquisition
or the other transactions contemplated hereby or from any Person alleging that the consent of such Person is or may be required
in connection with the Acquisition or the transactions contemplated herein, to the extent such consent is not already contemplated
by this Agreement, if the subject matter of such communication or the failure of such Party to obtain such consent could be material
to the Company or BidCo; (b) any actions, suits, claims, investigations or proceedings commenced or, to such Party’s
knowledge, threatened in writing against such Party or any of its subsidiaries which relate to the Acquisition or the other transactions
contemplated hereby; or (c) any change, condition or event (i) has had, or would reasonably to have, a Material Adverse
Effect, or (ii) that results, or could reasonably be expected to result, in any failure of such party to comply with or satisfy
any covenant, condition or agreement (including any condition set forth in Article VII) to be complied with or satisfied
hereunder; provided, that the delivery of any notice pursuant to this Section 6.6 shall not (A) cure any
breach of, or non-compliance with, any other provision of this Agreement or (B) limit the remedies available to the Party
receiving such notice.
Section 6.7 Access
to Information; Confidentiality.
(a) From
the date hereof to the Effective Date or the earlier valid termination of this Agreement, upon reasonable prior written notice
from BidCo (and subject to any reasonable limitations to protect the health and safety of the Company’s or its subsidiaries’
employees and other individuals having business dealings with the Company or any of its subsidiaries in response to COVID-19, SARS-Cov-2
virus or any mutation or variation thereof; provided, that in any such instance the Company shall reasonably cooperate with
BidCo to provide such information, in whole or in part, to the extent and in a manner compliant with such limitations), the Company
shall, and shall use its reasonable best efforts to cause its subsidiaries, officers, directors and employees to, afford BidCo
and its Representatives reasonable access, consistent with applicable Laws relating to the exchange of information, at normal business
hours to the Company’s and its subsidiaries’ officers, employees, Representatives, properties, offices and other facilities
and to all Contracts, commitments, books, records, Tax Returns and any Tax documents or information that the Company or any of
its subsidiaries receives or has received pursuant to a Tax sharing agreement, and shall furnish BidCo reasonably promptly with
all financial, operating and other data and information concerning its business and properties as BidCo or its Representatives,
may from time to time reasonably request (provided, that BidCo and its Representatives shall conduct any such activities
in such a manner as not to interfere unreasonably with the business or operations of the Company).
(b) Notwithstanding
the foregoing, any such investigation or consultation shall not include any environmental sampling or invasive environmental testing.
Neither the Company nor any of its subsidiaries shall be required to provide access to or to disclose information if the Company
determines, in its reasonable best judgment, based on the advice of outside counsel, such access or disclosure would violate an
obligation of confidentiality pursuant to any binding agreement entered into prior to the date of this Agreement to which the Company
or any of its subsidiaries is a party (so long as the Company shall have used reasonable best efforts to obtain the consent of
such third party to such access or disclosure), would result in the loss or waiver of any attorney-client privilege of the Company
or any of its subsidiaries (provided, that the Company will enter into a joint defense agreement with BidCo if requested
with respect to any such information) or contravene any applicable Law, rule, regulation, order, judgment or decree. All requests
for information made pursuant to this Section 6.7(b) shall be directed to the executive officer or other Person
designated by the Company.
(c) BidCo
will comply with the terms and conditions of the letter agreement, dated as of June 3, 2019, between the Company and Apollo
Management IX, L.P. (which agreement shall automatically terminate and be of no further force and effect upon the earlier of the
Effective Date and the twelve (12) month anniversary of the date hereof, as amended, restated, supplemented or otherwise modified
from time to time, the “Confidentiality Agreement”), and will hold and treat, and will cause their respective
officers, employees, auditors and other Representatives to hold and treat, in confidence all documents and information concerning
the Company and its subsidiaries furnished to BidCo in connection with the transactions contemplated by this Agreement in accordance
with the Confidentiality Agreement, which Confidentiality Agreement shall remain in full force and effect each in accordance with
its terms. The Company agrees that it will treat any documents and information concerning the BidCo Related Parties furnished or
otherwise made available to the Company, its subsidiaries or their respective Representatives in connection with the transactions
contemplated by this Agreement as if it was “Confidential Information” under the Confidentiality Agreement and as if
the use and disclosure restrictions thereunder applied to the Company.
Section 6.8 Stock
Exchange Delisting; Re-Registration as a Private Company; De-Registration under the Exchange Act. Each of the Parties
agrees to cooperate with each other to do or cause to be done all things, reasonably necessary, proper or advisable on their respective
parts under applicable Laws, CA 2006 and rules and policies of Nasdaq to enable the delisting by the Company of the Company
Shares from Nasdaq (the “Delisting”), and the re-registration of the Company from a public limited company
into a private limited company under CA 2006, as promptly as practicable after the Effective Date, and the deregistration of the
Company Shares under the Exchange Act as promptly as practicable following the Delisting.
Section 6.9 Publicity.
The initial press release regarding the Acquisition shall be a joint press release and thereafter the Company and BidCo shall
consult with each other prior to issuing any press releases or otherwise making public announcements with respect to the Acquisition
and the other transactions contemplated by this Agreement and prior to making any filings with any third party and/or any Governmental
Entity (including any national securities exchange or interdealer quotation service) with respect thereto, except as may be required
by Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer
quotation service or by the request of any Governmental Entity, in each case, as determined in the good faith judgment of the
Party proposing to make such release (in which case, such Party shall not issue or cause the publication of such press release
or other public announcement without prior consultation with the other Party); provided, that a Party may, without the
prior consent of the other Party issue such press release or make such public announcement in any case in which such disclosure
is made in connection with a dispute between the parties hereto regarding this Agreement or the transactions contemplated hereby.
Notwithstanding the foregoing, BidCo and its Affiliates may, without consulting the Company, provide ordinary course communications
regarding this Agreement and the transactions contemplated hereby to existing or prospective general and limited partners, equity
holders, members, managers and investors of any Affiliates of such Person.
Section 6.10 Employee
Benefits.
(a) For
a period of at least twelve (12) months following the Effective Date, BidCo shall provide, or shall cause the Company to provide,
to each employee of the Company or its subsidiaries who continues to be employed by the Company or any subsidiary or Affiliate
thereof (the “Continuing Employees”), (i) a salary, wage and target bonus opportunity, that is the same,
in the aggregate, as the salary, wage and target bonus opportunity that was provided to such Continuing Employee immediately prior
to the Effective Date; provided, that through the end of calendar year 2021, each Continuing Employee shall be provided with a
salary, wage and target bonus opportunity that, in each case, is the same as the salary, wage and target bonus opportunity that
was provided to such Continuing Employee immediately prior to the Effective Date and (ii) that was provided to such Continuing
Employee immediately prior to the Effective Date and (ii) employee pension, welfare and other benefits (other than any defined
benefit pension or equity-based compensation) that are substantially comparable in the aggregate to the employee pension, welfare
and other benefits (other than any defined benefit pension or equity-based compensation) provided to such Continuing Employee immediately
prior to the Effective Date; provided, that through the end of calendar year 2021, each Continuing Employee shall be provided
with employee pension, welfare and other benefits (other than any defined benefit pension or equity-based compensation) that are
no less favorable in the aggregate than the employee pension, welfare and other benefits (other than any defined benefit pension
or equity-based compensation) that was provided to such Continuing Employee immediately prior to the Effective Date. From the Effective
Date through the date that is twelve (12) months following the Effective Date, BidCo or one of its Affiliates shall maintain for
the benefit of each Continuing Employee a severance or termination arrangement or policy no less favorable than the severance or
termination arrangement or policy provided to such Continuing Employee immediately prior to the Effective Date, including, without
limitation any severance policy set forth in Section 1.17 of the Cardtronics Employee Manual for U.S. employees. This Section 6.10(a) shall
not apply to Continuing Employees whose terms and conditions of employment are governed by a collective bargaining agreement.
(b) BidCo
and its Affiliates shall maintain all Company Plans that are health and welfare plans in effect as of the Effective Date, through
calendar year 2021 and thereafter, BidCo shall use commercially reasonable efforts to (i) cause any preexisting conditions
or limitations and eligibility waiting periods under any group health or welfare plans of BidCo or its Affiliates to be waived
with respect to Continuing Employees and their eligible dependents and (ii) give each Continuing Employee credit for the plan
year in which the Continuing Employee commence participation in a corresponding employee benefit plan of BidCo or an Affiliate
towards applicable deductibles, copayments, coinsurance and annual out-of-pocket limits for medical expenses incurred prior to
the date of commencement in such new plan of BidCo or an Affiliate for which payment has been made. BidCo shall, to the extent
that it would not result in a duplication of benefits and to the extent that such service was recognized under a similar Company
Plan, give each Continuing Employee service credit for such Continuing Employee’s employment with the Company, its subsidiaries
and predecessors for purposes of eligibility to participate, vesting credit, level of benefits and benefit accrual (but excluding
benefit accrual under defined benefit pension plans) under each applicable BidCo benefit plan as if such service had been performed
with BidCo; provided, that such recognition of service shall not apply (x) for purposes of any BidCo benefit plan under
which similarly situated employees of BidCo and its subsidiaries participate and do not receive credit for prior service or (y) for
purposes of any plan or arrangement that is grandfathered or frozen and not open to new participants, either with respect to the
level of benefits or participation.
(c) As
of the Effective Date, BidCo shall or shall cause the Company to, assume or retain, as the case may be, all obligations of the
Company and its subsidiaries for the accrued and unused vacation and paid time off of the Continuing Employees. Continuing Employees
shall be permitted to use such accrued and unused vacation and paid time off in accordance with the Company’s or a subsidiary’s,
as applicable, policies and procedures as may be in effect from time to time.
(d) BidCo
shall or shall cause the Company or its subsidiaries to pay Continuing Employees annual cash bonus amounts for the full year in
which the Effective Date occurs in accordance with the terms of the applicable cash bonus plans in effect immediately prior to
the Effective Date. If the annual cash bonus with respect to the 2020 fiscal year has not been paid prior to the Effective Date,
BidCo shall or shall cause the Company or its subsidiaries to pay such bonuses on terms approved by the Company’s compensation
committee prior to the Effective Date at the regularly scheduled time in the ordinary course.
(e) Nothing
in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of BidCo, the Company
or any Affiliate of BidCo, or shall interfere with or restrict in any way the rights of BidCo, the Company or any Affiliate of
BidCo, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time
for any reason whatsoever, with or without cause. Notwithstanding any provision in this Agreement to the contrary, nothing in Section 6.10(a) shall
(i) be deemed or construed to be an amendment or other modification of any Benefit Plan, (ii) deemed or construed to
establish any Benefit Plan, (iii) prevent or limit BidCo, the Company or any Affiliate of BidCo from amending or terminating
any Benefit Plans in accordance with their terms and subject to Section 6.10(a), or (iv) create any third party
rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Section 6.11 Directors’
and Officers’ Indemnification and Insurance.
(a) From
and after the Effective Date, BidCo shall cause the Company to assume all obligations of the Company and its subsidiaries in respect
of exculpation, indemnification and advancement of expenses for each individual who on the Effective Date is, or at any time prior
to the Effective Date was, a director or officer of the Company, or, while a director or officer of the Company, is or was a director
or officer of its subsidiaries (each, an “Indemnified Party”), for acts or omissions occurring on or prior
to the Effective Date as provided in the Certificate of Incorporation and Articles of Association as in effect on the date of
this Agreement. For a period of six (6) years from the Effective Date, the Company shall maintain, and BidCo shall cause
the Company to maintain, provisions of the Certificate of Incorporation and Articles of Association with respect to limitation
of liabilities of directors and indemnification and advancement of expenses of officers and directors of the Company that are
no less favorable to the Indemnified Parties than are set forth in the Certificate of Incorporation and Articles of Association
as in effect on the date of this Agreement, and shall not prior to the expiration of such period amend, repeal or otherwise modify
any such provisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided,
however, that all rights to indemnification in respect of any actual or threatened claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative and whether formal or informal (each, a “Proceeding”)
made within such six (6)-year period shall continue until the disposition or resolution of such Proceeding in accordance with
the Company’s Certificate of Incorporation and Articles of Association. Anything to the contrary in this Section 6.11
notwithstanding, any Person to whom an advancement of expenses is provided in connection with a Proceeding shall be required
to provide, as a condition to such advancement, an undertaking to repay such advances if it is ultimately determined that such
Indemnified Party is not entitled to indemnification in connection with such Proceeding. In the event of any such Proceeding (x) neither
BidCo nor Company shall settle, compromise or consent to the entry of any judgment in any Proceeding in which indemnification
could be sought by such Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release
of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents in writing
to such settlement, compromise or consent and (y) the Company shall cooperate in the defense of any such matter. In the event
any Proceeding is brought against any Indemnified Party and in which indemnification could be sought by such Indemnified Party
under this Section 6.11, (i) the Company or BidCo shall have the right, but not the obligation, to control the
defense thereof after the Effective Date, (ii) each Indemnified Party shall be entitled to retain his or her own counsel,
whether or not the Company shall elect to control the defense of any such Proceeding, (iii) the Company shall advance all
reasonable fees and expenses of any counsel retained by an Indemnified Party promptly after statements therefor are received,
whether or not the Company shall elect to control the defense of any such Proceeding and (iv) no Indemnified Party shall
be liable for any settlement effected without his or her prior express written consent (which consent shall not be unreasonably
withheld, conditioned or delayed).
(b) Any
Indemnified Party wishing to claim indemnification or an advancement of expenses under Section 6.11, upon learning
of any such Proceeding, shall promptly notify the Company thereof, but the failure to so notify shall not relieve the Company of
any liability it may have to such Indemnified Party except to the extent such failure materially prejudices the Company.
(c) BidCo
shall maintain, or shall cause the Company to maintain, at no expense to the beneficiaries, in effect for a period of six (6) years
from the Effective Date the current policies of the directors’ and officers’ liability insurance and fiduciary liability
insurance maintained by the Company as disclosed in Section 6.11 of the Company Disclosure Letter with respect to matters
existing or occurring on or prior to the Effective Date; provided, however, that after the Effective Date, BidCo
shall not be required to pay in the aggregate for such coverage more than 300% of the last annual premium paid by the Company prior
to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much
coverage as reasonably practicable for such amount. At BidCo’s option, BidCo may direct the Company to purchase a six (6)-year
prepaid “tail policy” to incept on the Effective Date at a cost no greater than the aggregate amount that the Company
would be permitted to spend during the six (6)-year period provided for in this Section 6.11(c) on terms and conditions
providing substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance
and fiduciary liability insurance maintained by the Company and its subsidiaries with respect to claims arising from facts or events
that occurred at or before the Effective Date, including the transactions contemplated hereby. In the event BidCo elects to purchase
such a “tail policy” in accordance with this Section 6.11(c) prior to the Effective Date, the Company
shall (and BidCo shall cause the Company to) maintain such “tail policy” in full force and effect. BidCo agrees to
cause the Company to honor and perform all indemnification agreements entered into by the Company or any of its subsidiaries with
any Indemnified Party on the terms and conditions set forth therein and solely to the extent disclosed in Section 6.11
of the Company Disclosure Letter.
(d) If
BidCo or the Company or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation
or entity and shall not be the continuing or Company or entity of such consolidation or merger or (ii) shall transfer all
or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case,
proper provisions shall be made so that the successors and assigns of BidCo or the Company shall assume all of the obligations
set forth in this Section 6.11.
(e) The
provisions of this Section 6.11 shall survive the Acquisition and, following the Effective Date, are intended to be
for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their heirs and Representatives.
Section 6.12 Treatment
of Company Indebtedness.
(a) Prepayment
of Indebtedness under Company Credit Facilities.
(i) The
Company shall use reasonable best efforts, and shall cause its applicable subsidiaries to use reasonable best efforts, to deliver
to BidCo on or prior to the Effective Date (with drafts delivered at least two (2) Business Days prior to the Effective Date)
copies of payoff letters (subject to the delivery of funds as arranged by BidCo) with respect to the Company Credit Facilities
in customary form, which payoff letters shall (A) indicate the total amount required to be paid to fully satisfy all principal,
interest, prepayment premiums, penalties, breakage costs and any other monetary obligations then due and payable under the Company
Credit Facilities as of the anticipated Effective Date (and, if applicable, the daily accrual thereafter) (the “Payoff
Amount”), (B) state that upon receipt of the Payoff Amount under such payoff letters, the Company Credit Facilities
and all related loan documents shall be terminated and (C) provide that all Liens and guarantees in connection with the Company
Credit Facilities relating to the assets and properties of the Company or any of its subsidiaries securing the obligations under
the Company Credit Facilities shall be released and terminated upon payment of the Payoff Amount on the Effective Date.
(ii) The
Company shall use reasonable best efforts, and shall cause its applicable subsidiaries to use reasonable best efforts, to unwind
or novate or assist BidCo in connection with the unwinding or novation of any outstanding interest rate or other swaps or hedges
on the Effective Date that are designated by BidCo in writing to the Company at least five (5) Business Days prior to the
Effective Date (notice of which may be delivered by the Company to the applicable interest rate, swap or hedge counterparty at
BidCo’s request in advance of the Effective Date so long as the underlying swap or hedge documentation permits any such
notice to be contingent upon the consummation of the Acquisition).
(b) Senior
Notes.
(i) BidCo
will be permitted to commence and conduct one or more offers to purchase, including any “Change of Control Offer” (as
such term is defined in the Indenture) and/or any tender offer and to conduct a consent solicitation, if any (each, a “Debt
Offer” and, collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate
principal amount of the Senior Notes on terms that are acceptable to BidCo; provided, that any such Debt Offer is consummated
using funds provided by BidCo and at BidCo’s expense. BidCo shall provide the Company with the necessary offer to purchase
or other related documents in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable
period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on
the related Debt Offer Documents. The Debt Offers shall be conducted in compliance with the Indenture and applicable Law, including
SEC rules and regulations. The Company shall, and shall cause its subsidiaries and their respective Representatives to, in
each case, use their reasonable best efforts to provide all cooperation reasonably requested by BidCo in connection with any Debt
Offer; provided, that the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with
the Indenture and applicable Laws.
(ii) Subject
to the receipt of any requisite consents in connection with a consent solicitation, the Company and its subsidiaries shall execute
a supplemental indenture to the Indenture in accordance with the Indenture, amending the terms and provisions of the Indenture
as described in the Debt Offer Documents as reasonably requested by BidCo, which supplemental indenture shall become operative
no earlier than the Effective Date or the acceptance for purchase of the Senior Notes by BidCo, and shall use reasonable best efforts
to cause the trustee under the Indenture to enter into such supplemental indenture. The Company shall, and shall cause its subsidiaries
and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably
requested by BidCo in connection with the execution of supplemental indentures, including, if requested by BidCo, the Company shall
use its reasonable best efforts to cause its legal counsel to provide all customary legal opinions required in connection with
the transactions contemplated by this clause (ii) to the extent such legal opinion is required to be delivered prior to the
Effective Date. Notwithstanding the foregoing, in no event shall the Company or its legal counsel be required to give an opinion
with respect to a Debt Offer that in the reasonable opinion of the Company does not comply with applicable Laws or the Indenture.
(iii) If
requested by BidCo, in lieu of or in addition to BidCo commencing a Debt Offer for the Senior Notes, the Company shall use its
reasonable best efforts, to the extent permitted by the Indenture, to (A) issue one or more notices of optional redemption
for all or a portion of the outstanding aggregate principal amount of the Senior Notes (which may be delivered at BidCo’s
request in advance of the Effective Date so long as they are contingent upon the occurrence of the Effective Date (it being understood
and agreed that they may also be contingent upon the occurrence of other events in addition to the occurrence of the Effective
Date)), pursuant to the redemption provisions of the Indenture and (B) take any other actions reasonably requested by BidCo
to facilitate the satisfaction and discharge of the Senior Notes pursuant to the satisfaction and discharge provisions of the Indenture
and the other provisions of the Indenture applicable thereto. If a conditional notice of redemption is given, BidCo shall ensure
that on the Effective Date, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary
in connection with such redemption.
(c) The
Company shall, and shall cause its subsidiaries and their respective Representatives to, in each case, use their reasonable best
efforts to provide all customary cooperation reasonably requested by BidCo in connection with this Section 6.12.
Section 6.13 BidCo
Financing.
(a) BidCo
shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable to arrange, obtain and consummate the Financing in an amount required to satisfy the Financing Uses no later
than the Effective Date on the terms and conditions described in or contemplated by the Commitment Letters (or on other terms (x) that
are not less favorable to BidCo than the terms and conditions (including any “market flex” provisions contained in
the Debt Fee Letter) set forth in the Commitment Letters and (y) so long as such other terms would not have any result, event
or consequence described in Section 6.13(c)(ii)), including using reasonable best efforts to (i) maintain in full
force and effect the Commitment Letters, (ii) negotiate and execute definitive agreements with respect to the Debt Financing
required to satisfy the Financing Uses (which, with respect to the bridge facility documentation, shall not be required until reasonably
necessary or advisable in connection with the funding of the Debt Financing) on the terms and conditions contained in the Debt
Commitment Letter (or on other terms (x) that are not less favorable to BidCo than the terms and conditions (including any
“market flex” provisions contained in the Debt Fee Letter) set forth in the Commitment Letters and (y) so long
as such other terms would not have any result, event or consequence described in Section 6.13(c)(ii)) (such definitive
agreements, the “Definitive Financing Agreements”), (iii) satisfy and comply with on a timely basis (except
to the extent that BidCo has obtained the waiver of) all conditions and covenants to the funding or investing of the Financing
in the Commitment Letters and the Definitive Financing Agreements that are to be satisfied by BidCo and are within its control,
(iv) enforce BidCo’s rights under the Commitment Letters (including, with respect to the Debt Commitment Letter, BidCo’s
right to cause the Debt Financing Sources to fund the Debt Financing upon the satisfaction of the conditions set forth in the Debt
Commitment Letter) and (v) consummate the Financing in an amount required to satisfy the Financing Uses on or prior to the
Effective Date. BidCo shall comply with its obligations under the Commitment Letters in a timely and diligent manner.
(b) In
the event that, notwithstanding the use of reasonable best efforts by BidCo to satisfy its obligations under Section 6.13(a),
any portion of the Debt Financing in an amount required to satisfy the Financing Uses (after taking into account any available
Equity Financing and the portion of the Debt Financing that remains available) becomes unavailable on the terms and conditions
(including any “market flex” provisions set forth in the Debt Fee Letter) contemplated by the Debt Commitment Letter
or the Equity Commitment Letter or any of the Definitive Financing Agreements
shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor, BidCo shall use its reasonable
best efforts to, as promptly as practicable following the occurrence of such event, notify the Company of such unavailability and
the reason therefor and BidCo shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable to arrange to obtain from the same and/or Alternative Financing sources,
alternative financing on terms and conditions not materially less favorable to BidCo than the terms and conditions (including any
“market flex” provisions set forth in the Debt Fee Letter) contained in the Debt Commitment Letter in an amount sufficient,
when added to the portion of the Debt Financing that is and remains available and taking into account any available Equity Financing,
to satisfy the Financing Uses (“Alternative Financing”) and to obtain and provide the Company with a copy of
any new executed commitment letter that provides for such Alternative Financing (the “Alternative Financing Commitment
Letter”). For purposes of this Agreement (other than with respect to representations in this Agreement made by BidCo
that speaks to the date of this Agreement) references to (i) the “Financing” and “Debt Financing”
shall include the Debt Financing and any such Alternative Financing, (ii) the “Commitment Letter” and the “Debt
Commitment Letter” shall include the Debt Commitment Letter to the extent not superseded by the Alternative Financing Commitment
Letter and any such Alternative Financing Commitment Letter, (iii) the “Definitive Financing Agreements” shall
include the definitive documentation relating to the debt financing completed by the Debt Commitment Letter and any such Alternative
Financing and (iv) the “Debt Financing Sources” shall include the financial institutions and other entities party
to any Alternative Financing Commitment Letter.
(c) BidCo
shall not, and shall cause its Affiliates not to, permit or consent to or agree to any amendment, restatement, replacement, supplement,
termination or other modification or waiver of any provision or remedy under, (i) the Equity Commitment Letter (other than
to increase the amount of Equity Financing available thereunder) without the prior written consent of the Company or (ii) the
Debt Commitment Letter without the prior written consent of the Company, if such amendment, restatement, supplement, termination,
modification or waiver would (A) impose new, modified or additional conditions precedent to the funding of the Debt Financing,
(B) be reasonably expected to prevent or delay the availability of all or a portion of the Debt Financing necessary to satisfy
the Financing Uses (after taking into account any available Equity Financing) or the consummation of the transactions contemplated
hereby, (C) reduce the aggregate amount of the Debt Financing below the amount necessary to satisfy the Financing Uses (after
taking into account any available Equity Financing) or (D) otherwise adversely affect the ability of BidCo to enforce its
rights under the Debt Commitment Letter; provided, that, for the avoidance of doubt, BidCo may amend the Debt Commitment
Letter to add initial lenders, lead arrangers, bookrunners, syndication agents or other similar roles that had not executed the
Debt Commitment Letter as of the date of this Agreement to the extent doing so would not impose new, modified or additional conditions
or expand any existing conditions to the amount, receipt or availability of the Debt Financing or result in any amendments to the
Debt Commitment Letter that would not otherwise be permitted without the Company’s consent. As promptly as practicable following
execution thereof (but in any event within two (2) Business Days), BidCo shall furnish to the Company a correct and executed
copy of any such amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Commitment
Letters and the Debt Fee Letter and any other fee letters entered into in connection with the Debt Financing (which may be redacted
in a manner consistent with the redactions permitted by Section 4.8). For purposes of this Agreement (other than with
respect to representations in this Agreement made by BidCo that speaks as of the date of this Agreement), references to (1) the
“Equity Financing,” “Debt Financing” and “Financing” will include the financing contemplated
by the Commitment Letters as permitted by this Section 6.13 to be amended, restated, replaced, supplemented or otherwise
modified or waived and (2) the “Debt Commitment Letter,” “Equity Commitment Letter” or “Commitment
Letters” shall include such document as amended, restated, replaced, supplemented or otherwise modified or waived to the
extent such amendment, restatement, replacement, supplement, other modification or waiver was expressly permitted under this Section 6.13,
in each case from and after the date such expressly permitted amendment, restatement, replacement, supplement or other modification
or waiver.
(d) Notwithstanding
anything to the contrary contained in this Agreement, nothing contained in this Section 6.13 will require, and in
no event will the reasonable best efforts of BidCo be deemed or construed to require, BidCo to (i) seek the Equity Financing
from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter
or (ii) pay any fees materially in excess of the fees and other amounts contemplated by the Equity Commitment Letter and/or
the Debt Commitment Letter (including any “market flex” provisions set forth in the Debt Fee Letter).
(e) Upon
the request of the Company, BidCo shall keep the Company informed as promptly as practicable (and in any event within two (2) Business
Days of each such request) in reasonable detail of the status of its efforts to arrange the Debt Financing and/or obtain any Alternate
Financing. Without limiting the generality of the foregoing, BidCo shall give the Company prompt written notice after BidCo’s
knowledge of (i) any default or breach (or any event that, with or without notice, lapse of time or both, would, or would
reasonably be expected to, give rise to any default or breach) by any party under any of the Commitment Letters or the Definitive
Financing Agreements of which BidCo becomes aware, (ii) any termination of any of the Commitment Letters, (iii) the
receipt by BidCo of any written notice or other written communication from any Financing Source with respect to any (A) actual
or potential default, breach, termination or repudiation of any Commitment Letter or any Definitive Financing Agreement, or any
material provision thereof, in each case by any party thereto, or (B) material dispute or disagreement between or among any
parties to any Commitment Letter or the Definitive Financing Agreements that would reasonably be expected to prevent or materially
delay the Effective Date or make the funding of the Debt Financing and/or Equity Financing required to satisfy the Financing Uses
on the Effective Date less likely to occur, (iv) the occurrence of an event or development that could reasonably be expected
to adversely impact the ability of BidCo to obtain all or any portion of the Debt Financing and/or Equity Financing necessary
to satisfy the Financing Uses and (v) any condition precedent to any of the Debt Financing and/or Equity Financing that BidCo
has any reason to believe will not be satisfied at the Effective Date.
(f) From
the date of this Agreement until the earlier of the Effective Date and the valid termination of this Agreement in accordance with
Article VIII, the Company agrees to use reasonable best efforts to provide, and shall cause its subsidiaries and their
respective Representatives to use reasonable best efforts to provide, in each case at BidCo’s sole expense, all reasonable
and customary cooperation as may be reasonably requested by BidCo to assist BidCo in causing the conditions in the Debt Commitment
Letter to be satisfied or as is otherwise reasonably requested by BidCo and as is reasonably necessary or customary for financings
similar to the financings contemplated by the Debt Commitment Letter (including any offering or private placement of debt securities
pursuant to Rule 144A under the Securities Act), including using reasonable best efforts to:
(i) as
promptly as reasonably practicable (A) furnish BidCo with the Required Information and other information regarding the Company
and its subsidiaries that is reasonably requested by BidCo and customarily included in marketing materials or offering documents
for financings similar to the financings contemplated by the Debt Commitment Letter and is readily available to the Company and
(B) inform BidCo if the chief executive officer, chief financial officer, treasurer, controller or comparable officer of
the Company shall have actual knowledge of any facts as a result of which a restatement of any financial statements included in
the Required Information is probable or under active consideration in order for such financial statements to comply with GAAP;
(ii) upon
reasonable prior written notice, and at mutually agreed times and locations, cause appropriate members of the Company’s
senior management team to participate in a reasonable number of meetings, conference calls, presentations and roadshows with prospective
lenders and investors, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with
rating agencies and use reasonable best efforts to assist BidCo in obtaining ratings in connection with the Debt Financing;
(iii) reasonably
assist BidCo and the Debt Financing Sources with the reasonably timely preparation of customary (A) materials for rating
agency presentations and (B) bank information memoranda, lender presentations, investor presentations, offering documents,
prospectuses and similar customary documents for use in connection with the Debt Financing, including reviewing and commenting
on BidCo’s draft of a business description to be included in marketing materials or offering documents;
(iv) reasonably
assist BidCo with the preparation of pro forma financial information and pro forma financial statements reflecting the transactions
contemplated hereby and the Debt Financing to the extent required by SEC rules and regulations or necessary or reasonably
requested by BidCo or the Debt Financing Sources to be included in any marketing materials or offering documents or of the type
required by the Debt Commitment Letter, it being agreed that (x) BidCo shall be responsible for the preparation of any pro
forma financial statements, pro forma financial information and marketing materials for the Debt Financing and (y) the Company
and its subsidiaries will not be required to provide information covering any period after the Effective Date or provide any Excluded
Information;
(v) request
and reasonably facilitate the Company’s independent auditors to (A) provide, consistent with customary practice, customary
auditors consents (including consents of accountants for use of their reports in any materials relating to the Debt Financing)
and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial
information relating to the Company and its subsidiaries and (B) attend a reasonable number of accounting due diligence sessions
and drafting sessions;
(vi) promptly
execute and deliver to BidCo and the Debt Financing Sources at least four (4) Business Days prior to the Effective Date all
documentation and other information with respect to the Company and its subsidiaries that is required by the Debt Financing Sources
in connection with the Debt Financing to comply with applicable “know-your-customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act, and the requirements of 31 C.F.R. §1010.230 and that has been requested of the
Company by BidCo at least eight (8) Business Days prior to the Effective Date;
(vii) subject
to Section 6.13(g)(iv), execute and deliver as of the Effective Date any guarantee, pledge and security documents,
supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates
or documents as required by the Debt Commitment Letter and as may be reasonably requested by BidCo (including a certificate of
the chief financial officer of the Company with respect to solvency matters in the form set forth as an exhibit to the Debt Commitment
Letter) it being understood that such documents will not take effect until the Effective Date, and otherwise reasonably assist
in facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing to the extent
required by the Debt Commitment Letter (including using reasonable best efforts to deliver any original stock certificates and
related powers and any original promissory notes and related powers);
(viii) cooperate
with the Debt Financing Sources’ reasonable due diligence requests; and
(ix) to
the extent required under the Debt Commitment Letter, provide customary authorization letters to the Debt Financing Sources authorizing
the distribution of information to prospective lenders or investors and containing a customary representation to the Debt Financing
Sources as contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not include
material non-public information about the Company or its subsidiaries or their securities and as to the accuracy of the information
contained in the disclosure and marketing materials related to the Debt Financing.
(g) Notwithstanding
anything in Section 6.13(f) and Section 6.13(h) to the contrary, (i) such requested cooperation
shall not unreasonably disrupt or interfere with the business or the operations of the Company or its subsidiaries, (ii) nothing
in Section 6.13(f) shall require cooperation of the Company, any of its subsidiaries, Affiliates or Representatives
to the extent that it would (A) subject any of the Company’s or its subsidiaries’ respective directors, managers,
officers or employees to any actual or potential personal liability (as opposed to liability in his or her capacity as a director,
manager, officer or employee of such Person), (B) reasonably be expected to conflict with, violate or result in a default
or breach under the Company’s or any of its subsidiaries’ organizational documents, any applicable Law, this Agreement
or material Contracts or (C) cause any condition to the consummation of the Acquisition set forth in Article VII
not to be satisfied, (iii) prior to the Effective Date, neither the Company nor any of its subsidiaries shall be required
to pay any commitment or other similar fee or incur any other expense, liability or obligation or make any other payment or agree
to provide any indemnity in connection with the Debt Financing, in each case, that has not been or will not be reimbursed or indemnified
by BidCo, (iv) none of the Company, its subsidiaries or their respective directors, officers or employees shall be required
to execute, deliver or enter into, or perform any agreement, document or instrument, including any Definitive Financing Agreement,
with respect to the Debt Financing that is not contingent upon the consummation of the Acquisition or that would be effective
prior to the Effective Date (other than representation letters and authorization letters referred to above) and the directors
and managers of the Company’s subsidiaries shall not be required to adopt resolutions approving the agreements, documents
and instruments pursuant to which the Financing is obtained prior to the Effective Date unless BidCo shall have determined that
such directors and managers are to remain as directors and managers of the Company’s subsidiaries on and after the Effective
Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Effective Date and (v) nothing
in Section 6.13(f) or Section 6.13(h) shall oblige the Company to provide any information which
(A) would result in the loss or waiver of any attorney-client privilege of the Company or any of its subsidiaries or (B) would
contravene any applicable Law, rule, regulation or order (provided, that the Company shall use reasonable best efforts
to make substitute arrangements or permit such disclosure in a manner that would not result in the loss or waiver of any such
attorney-client privilege) and/or (vi) nothing in Section 6.13(f) or Section 6.13(h) shall
require the Company to prepare any financial statements or financial information unless such financial statements or financial
information are prepared in the ordinary course of business and derivable from the Company’s or its subsidiaries’
historical books and records. The Company hereby consents to the use of its and its subsidiaries’ logos in connection with
the Debt Financing; provided, that such logos are used solely in a manner that is reasonable and customary and is not intended
to, nor reasonably likely to, harm or disparage the Company or its subsidiaries in any respect.
(h) The
Company will use its reasonable best efforts, and will cause each of its subsidiaries to use its respective reasonable best efforts,
to periodically update any Required Information provided to BidCo as may be necessary so that such Required Information (i) is
Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Information” and (iii) would
not, after giving effect to such update(s), cause the Marketing Period to cease or be deemed not to have commenced pursuant to
the definition of “Marketing Period.” For the avoidance of doubt, subject to the limitations set forth in Section 6.13(g),
BidCo may, to most effectively access the financing markets, request the cooperation of the Company and its subsidiaries under
this Section 6.13 at any time, and from time to time and on multiple occasions, between the date of this Agreement
and the Effective Date; provided, that, for the avoidance of doubt, the Marketing Period shall not be affected by any such attempt
or recommence or otherwise restart upon any such attempt. The Company agrees to (A) file all reports on Form 10-K and
Form 10-Q and, to the extent required to include financial information pursuant to Item 9.01 thereof, Form 8-K in accordance
with the time periods required by the Exchange Act and (B) use reasonable best efforts to file all other Forms 8-K, in each
case, required to be filed with the SEC pursuant to the Exchange Act prior to the Effective Date. In addition, subject to the
limitations set forth in Section 6.13(g), if, in connection with any marketing materials, offering documents or disclosure
related to the Debt Financing, BidCo reasonably requests the Company to file a Current Report on Form 8-K pursuant to the
Exchange Act that contains material non-public information with respect to the Company or its subsidiaries or their securities,
which information BidCo reasonably determines (and the Company does not reasonably object) to include in an offering memorandum
or other marketing materials for the Debt Financing, then the Company shall file such Current Report on Form 8-K.
(i) BidCo
shall indemnify, defend and hold harmless each of the Company, its subsidiaries, their Affiliates and their respective Representatives
from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties
suffered or incurred by them in connection with their cooperation in arranging the Debt Financing and the performance of their
respective obligations under Section 6.12 and this Section 6.13 and the provision of any information utilized
in connection therewith (other than information provided by the Company or its subsidiaries), in each case, other than to the
extent any of the foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of,
or material breach of this Agreement by, the Company and its subsidiaries or their respective Representatives. BidCo shall, promptly
upon written request of the Company (and in any event within ten (10) days after any such request), reimburse the Company
and its subsidiaries for all out-of-pocket fees, costs and expenses incurred by the Company or its subsidiaries in connection
with the cooperation required by Section 6.12 and this Section 6.13.
(j) Notwithstanding
anything to the contrary contained herein, BidCo acknowledges and agrees that its obligations to consummate the Acquisition and
the other transactions contemplated hereby are not contingent upon BidCo obtaining the Financing, any Alternative Financing or
any other third party financing.
Section 6.14 Takeover
Statutes. The Company shall not, and shall cause its subsidiaries not to, take any action that would, or would reasonably
be expected to, cause any Takeover Law (including the UK City Code on Takeovers and Mergers) to become applicable to this Agreement,
the Acquisition or any of the transactions contemplated hereby. If any Takeover Law is or may become applicable to the Acquisition
or the other transactions contemplated by this Agreement, each of the Company and BidCo and the members of their respective boards
of directors shall grant such approvals and shall use reasonable best efforts to take such actions so that such transactions may
be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize
the effects of such statute or regulation on such transactions. Nothing in this Section 6.14 shall be construed to
permit BidCo to do any act that would constitute a violation or breach of, or as a waiver of any of the Company’s rights
under, any other provision of this Agreement.
Section 6.15 Transaction
Litigation. In the event that any Company Shareholder litigation related to this Agreement, the Acquisition or the
other transactions contemplated by this Agreement is brought or threatened to be brought against the Company, its officers or
any members of the Board after the date of this Agreement and prior to the Effective Date (the “Transaction Litigation”),
the Company shall promptly (and, in any event, within one (1) Business Day) notify BidCo of any such Transaction Litigation
and shall keep BidCo reasonably informed with respect to the status thereof, including, by promptly (and, in any event, within
one (1) Business Day) providing BidCo copies of all proceedings and correspondence relating to such Transaction Litigation.
The Company shall give BidCo the opportunity to participate in the defense or settlement of any Transaction Litigation (including
by allowing for advance review and comment on all filings or responses to be made in connection therewith) or settlement (including
the right to participate in (at BidCo’s expense) the negotiations, arbitrations or mediations with respect thereto) and
shall give due good faith consideration to BidCo’s advice with respect to such Transaction Litigation and the underlying
strategy documentation with respect thereto. The Company shall not cease to defend, settle or agree to settle any Transaction
Litigation without BidCo’s prior written consent (in its sole discretion).
Section 6.16 Rule 16b-3.
Prior to the Effective Date, the Company shall be permitted to take such steps as may be reasonably necessary or advisable hereto
to cause any dispositions of Company equity securities (including derivative securities) pursuant to the transactions contemplated
by this Agreement by each individual (including any Person who is deemed to be a “director by deputization” under
applicable securities Laws) who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect
to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 6.17 Director
Resignations. Prior to the Effective Date, the Company shall obtain and deliver to BidCo the resignation (in form and
substance reasonably satisfactory to BidCo) of each director of the Company from his or her corporate offices (but not his or
her employment) with the Company, effective as of the Effective Date (or, at the option of BidCo, a later time).
Section 6.18 Warrants.
(a) Prior
to the Effective Date, the Company shall use its commercially reasonable efforts to, and shall cause its subsidiaries and its
and their respective directors and officers to, and shall use its commercially reasonable efforts to cause its other Representatives
to, take all actions reasonably requested by BidCo in connection with making elections under, amending, negotiating adjustments,
obtaining waivers, and/or unwinding or otherwise settling the Warrants; provided, that, unless otherwise agreed by the
parties, each such election, amendment, negotiated adjustment, waiver, unwinding and settlement shall take effect on or after
the Effective Date. Without limiting the foregoing, the Company shall use its commercially reasonable efforts to cooperate with
BidCo at BidCo’s request (including taking the express direction of BidCo) in connection with, and at BidCo’s request
shall use its commercially reasonable efforts to initiate or continue, any discussions or negotiations with the counterparties
to the Warrants or any of their respective affiliates or any other Person, in each case, to the extent such affiliate or other
Person expressly represents the interests of the counterparties to the Warrants or is empowered to make any determinations, adjustments,
cancelations, terminations, exercises, settlements or computations under the Warrants (any such counterparty, affiliate or Person,
a “Hedge Counterparty”), with respect to any determination, adjustment or computation in connection with the
Warrants. The Company shall promptly provide BidCo with any written notices or other documents received from any Hedge Counterparty
with respect to any adjustment, determination, cancelation, termination, exercise, settlement or computation under, or in connection
with any discussions or negotiations related to, the Warrants. The Company shall not, and shall cause its Representatives not
to, except as contemplated herein, terminate or otherwise settle the Warrants, enter into any discussions, negotiations or agreements
in respect of the Warrants or negotiate any adjustments, make any elections, amendments, modifications or other changes to the
terms of the Warrants without BidCo’s prior written consent (in BidCo’s sole discretion), except as expressly required
pursuant to the terms thereof (as in effect on the date of this Agreement) and shall use its commercially reasonable efforts to
keep BidCo fully informed on a reasonably current basis of all such discussions and negotiations and shall give BidCo the option
to participate (or have its counsel participate) in any such discussions and negotiations. The Company shall provide BidCo and
its counsel reasonable advance opportunity to review and comment on any written response to any written notice or other document
received from any Hedge Counterparty with respect to any determination, adjustment or computation under, or in connection with
any discussions or negotiations related to, the Warrants taking into account any such comments in good faith prior to making any
such response, and the Company shall use its commercially reasonable efforts to respond as promptly as practicable to any reasonable
questions from, and reflect any reasonable comments made by, BidCo or its counsel with respect thereto prior to making any such
response.
(b) Prior
to the Effective Date and without limitation to the other provisions of this Section 6.18, the Company shall take
all such actions as may be required and may take any actions contemplated by the terms of the applicable Warrants, including the
giving of any written notices or communication in connection with the Acquisition. The Company shall use its commercially reasonable
efforts to provide BidCo and its counsel reasonable advance opportunity to review and comment on any such written notice or communication
taking into account any such comments in good faith prior to the dispatch or making thereof, and the Company shall use its commercially
reasonable efforts to promptly respond to any reasonable questions from, and reflect any reasonable comments made by, BidCo or
its counsel with respect thereto prior to the dispatch or making thereof.
Section 6.19 Switching.
Other than pursuant to any revisions to this Agreement negotiated on the basis set out in Section 6.2(b), BidCo may
not elect to implement the Acquisition by means of a takeover offer within the meaning of Section 974 of CA 2006 at any time
without first obtaining the written consent (in its sole discretion) of the Company.
Article VII
CONDITIONS
OF THE ACQUISITION
Section 7.1 Conditions
to Obligation of Each Party to Effect the Acquisition. The respective obligations of each Party to effect the Acquisition
shall be subject to the satisfaction (or waiver by BidCo and the Company) on or prior to the date of the Court Hearing of the
following conditions:
(a) Scheme
Conditions.
(i) The
Scheme has been approved by a majority in number representing not less than seventy-five percent (75%) in value of Company Shareholders
who are on the register of members of the Company (or the relevant class or classes thereof) at the Voting Record Time, present
and voting (and who are entitled to vote), whether in person or by proxy, at the Court Meeting and at any separate class meeting
which may be required (or any adjournment thereof);
(ii) The
resolutions required to implement the Scheme being duly passed by the requisite majority of the Company Shareholders at the General
Meeting (or any adjournment thereof); and
(iii) The
sanction of the Scheme by the Court (with or without modification (but subject to any modification being on terms acceptable to
BidCo and the Company)).
(b) Orders.
No Law, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated
or enforced by any Governmental Entity of competent jurisdiction which prohibits, restrains, enjoins or otherwise makes illegal
the consummation of the Acquisition and shall remain in effect.
(c) Regulatory
Clearances. The waiting period (and any extension thereof) applicable to the consummation of the Acquisition under (i) the
HSR Act and (ii) the other Antitrust or Foreign Investment Laws identified in Section 7.1(c) of the Company
Disclosure Letter shall have expired or been earlier terminated and any required approvals thereunder shall have been obtained
(collectively, the “Clearances”).
Section 7.2 Conditions
to Obligations of BidCo. The obligations of BidCo to effect the Acquisition shall be further subject to the satisfaction
(or waiver by BidCo) on or prior to the date of the Court Hearing of the following conditions:
(a) Representations
and Warranties. Each of the representations and warranties of the Company set forth in (i) Section 3.1, Section 3.3(a),
Section 3.3(b), Section 3.3(c), Section 3.3(d), Section 3.3(f), Section 3.4,
Section 3.9(a), Section 3.19 and Section 3.20 of this Agreement shall be true and correct
in all respects (except with respect to the representations and warranties in Section 3.1(b), Section 3.1(c),
Section 3.1(d), Section 3.3(a), Section 3.3(b), Section 3.3(c) and Section 3.3(d) any
failure to be so true and correct that is de-minimis in nature), both when made and at and as of the date of the Court Hearing
as though made on and as of such date (except to the extent that any such representation or warranty expressly is made as of an
earlier date, in which case such representation and warranty shall be true and correct as of such specified date), (ii) Section 3.5,
Section 3.16 and Section 3.23 of this Agreement shall be true and correct in all material respects (without
giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such
representations and warranties), both when made and at and as of the date of the Court Hearing as though made on and as of such
date (except to the extent that any such representation or warranty expressly is made as of an earlier date, in which case such
representation and warranty shall be true and correct as of such specified date) and (iii) the other provisions of Article III
shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse
Effect” or similar qualifiers contained in any such representations and warranties), both when made and at and as of the
date of the Court Hearing as though made on and as of such date (except to the extent that any such representation or warranty
expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified
date), except where the failures of any such representations and warranties to be so true and correct would not reasonably be
expected to have or result in a Material Adverse Effect as of the date of the Court Hearing;
(b) Performance
of Obligations of the Company. The Company shall have performed or complied in all material respects with the obligations,
and performed or complied in all material respects with the agreements and covenants, required to be performed by, or complied
with by, it under this Agreement on or prior to the date of the Court Hearing;
(c) Material
Adverse Effect. Since the date of this Agreement, there shall not have been, nor shall there be, any Material Adverse Effect;
and
(d) Certificate.
BidCo shall have received a certificate of an executive officer of the Company, certifying that the conditions set forth in Section 7.2(a),
Section 7.2(b) and Section 7.2(c) have been satisfied.
Section 7.3 Conditions
to Obligations of the Company. The obligation of the Company to effect the Acquisition shall be further subject to
the satisfaction (or waiver by the Company) on or prior to the date of the Court Hearing of the following conditions:
(a) Representations
and Warranties. Each of the representations and warranties of BidCo (i) in Section 4.1 and Section 4.2
shall be true and correct in all respects, both when made and at and as of the date of the Court Hearing as though made on
and as of such date (except to the extent that such representation or warranty expressly is made as of an earlier date, in which
case such representation and warranty shall be true and correct as of such specified date) and (ii) the other provisions
of Article IV shall be true and correct, both when made and at and as of the date of the Court Hearing as though made
on and as of such date (except to the extent that any such representation or warranty expressly is made as of an earlier date,
in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of
any such representations and warranties to be true and correct would not reasonably be expected to prevent, materially delay or
have a material adverse effect on the ability of BidCo to consummate the transactions contemplated by this Agreement (“BidCo
Material Adverse Effect”);
(b) Performance
of Obligations of BidCo. BidCo shall have performed or complied in all material respects the obligations, and performed or
complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under
this Agreement on or prior to the date of the Court Hearing; and
(c) Certificate.
The Company shall have received a certificate of an executive officer of BidCo, certifying that the conditions set forth in Section 7.3(a) and
Section 7.3(b) have been satisfied.
Section 7.4 Frustration
of Conditions. Neither the Company nor BidCo may rely, either as a basis for not consummating the Acquisition or terminating
this Agreement and abandoning the Acquisition, on the failure of any condition set forth in Section 7.1, Section 7.2
or Section 7.3, as the case may be, to be satisfied if such failure was primarily caused by such Party’s
breach in any material respect of any provision of this Agreement.
Section 7.5 General.
(a) On
or before the date of the satisfaction (or, where permitted or required under this Agreement, waiver by BidCo or the Company,
as applicable) of the conditions set forth in Section 7.1, Section 7.2 and Section 7.3 (other
than the condition set forth in Section 7.1(a)(iii) and any other condition capable of satisfaction only at the
Court Hearing, but subject to the fulfillment or waiver of those conditions on the date of the Court Hearing) (the “Satisfaction
Date”), the Parties shall submit a request to the Court to schedule the Court Hearing on the soonest practicable date
that is at least twelve (12) Business Days but no more than fifteen (15) Business Days after the Satisfaction Date. Notwithstanding
such request, the date on which the Court schedules the Court Hearing (as such date may be rescheduled in accordance with this
Section 7.5(a)) is referred to herein as the “Scheduled Court Hearing Date.” Notwithstanding
anything to the contrary in this Agreement, the Parties agree (i) to submit a request to the Court that the Scheduled Court
Hearing Date shall be no earlier than the date that is twelve (12) Business Days after the date on which the Parties shall submit
the request to the Court to schedule the Court Hearing and, in the event that notwithstanding such request the Court does in fact
schedule the Court Hearing for a date that is earlier than the date that is twelve (12) Business Days after such request, BidCo
shall have the right to require that the Parties submit a request to the Court to reschedule the Court Hearing to a date that
is not earlier than the date that is twelve (12) Business Days after such original request, (ii) that if the Marketing Period
has not commenced on the Satisfaction Date, the Parties shall instead submit the request to the Court to schedule the Court Hearing
on the date on which the Marketing Period has commenced (which request will include a requested Court Hearing date that is at
least twelve (12) Business Days but no more than fifteen (15) Business Days after the Marketing Period has commenced in accordance
with the definition thereof, unless the Parties otherwise agree in writing); (iii) that if at any time prior to then-Scheduled
Court Hearing Date the Marketing Period shall cease or be deemed not to have commenced pursuant to the definition of “Marketing
Period,” the Parties shall submit a request to the Court to reschedule the Court Hearing to a date that otherwise complies
with this Section 7.5(a) and (iv) in no event shall the date requested by the Parties for the Court Hearing
be a date which is prior to the final day of the Marketing Period.
(b) BidCo
shall appear by counsel at the Court Hearing (either individually or jointly with the Company) to undertake to be bound by the
Scheme following the satisfaction (or, where permitted or required under this Agreement, waiver by BidCo or the Company, as applicable)
of the conditions set forth in Section 7.1 or Section 7.2 (other than the condition set forth in Section 7.1(a)(iii) and
any other condition capable of satisfaction only at the Court Hearing, but subject to the fulfillment or waiver of those conditions
on the date of the Court Hearing).
(c) BidCo
covenants that by no later than 9:00 a.m. (London time) on the date of the Court Hearing, it shall deliver a notice in writing
to the Company either: (i) confirming the satisfaction or BidCo’s waiver of all conditions set forth in Section 7.1
or Section 7.2; or (ii) confirming its intention to invoke a condition and, if (ii), it shall in such notice
identify the condition or conditions which BidCo considers it is entitled to invoke and provide reasonable details of the event
which has occurred, or circumstance which has arisen, which BidCo considers entitle it to invoke that condition or those conditions.
(d) The
Company covenants that it will deliver the Court Order to the Registrar of Companies on the date that is two (2) Business
Days after the date the Court sanctions the Scheme (or such other date as the Parties may agree in writing).
(e) Each
of the Company and BidCo shall keep the other Party reasonably informed promptly of (i) the progress towards obtaining the
Clearances and, if the Company or BidCo is, or becomes, aware of any matter which might reasonably be considered to be material
in the context of obtaining such clearances, the Company or BidCo, as applicable, will as soon as reasonably practicable make
the substance of any such matter known to the other Party and, so far as it is aware of the same, provide such details and further
information as such other Party may reasonably request and (ii) any of the following of which the Company becomes aware of:
the occurrence or existence or any fact, event or circumstance that has had or would reasonably be expected to have a Material
Adverse Effect or would cause or constitute a material breach of any representation, warranty, covenant or other agreement contained
herein, provided, that nothing in this Section 7.5(e) shall oblige the other Party to provide any information
to the other which (A) such Party determines in its reasonable judgment based on the advice of outside counsel would violate
an obligation of confidentiality pursuant to any binding agreement entered into prior to the date of this Agreement to which it
or any of its subsidiaries is a party so long as such Party shall have used reasonable best efforts to obtain the consent of such
third party to such access or disclosure, (B) would result in the loss or waiver of any attorney-client privilege of such
Party or any of its subsidiaries or (C) would contravene any applicable Law, rule, regulation, order (provided, that
such Party shall use reasonable best efforts to make substitute arrangements or permit such disclosure in a manner that would
not violate such restrictions).
Article VIII
TERMINATION
Section 8.1 Termination.
This Agreement may be terminated and the Acquisition may be abandoned at any time prior to the Effective Date, notwithstanding
the Company Requisite Vote having been obtained:
(a) by
mutual written consent of BidCo and the Company;
(b) by
BidCo or the Company if any court or other Governmental Entity of competent jurisdiction shall have issued an order, decree, ruling,
judgment or injunction, or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation
of the Acquisition and such order, decree, ruling, judgment, injunction or other action is or shall have become final and non-appealable;
provided, that the Party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have
used such standard of efforts to the extent required by and subject to Section 6.5 to prevent, oppose and remove such
restraint, injunction or other prohibition;
(c) by
either BidCo or the Company if the Effective Date shall not have occurred on or before 11:59 p.m. (New York City time) on
September 14, 2021 (as it may be extended pursuant to this Section 8.1(c), the “End Date”);
provided, that (i) in the event the Marketing Period has commenced but has not yet been completed at the time of the
End Date, the End Date may be extended by BidCo in its sole discretion until three (3) Business Days after the final date
of the Marketing Period and (ii) in the event the Court Hearing has been scheduled but the condition set forth in Section 7.1(a)(iii) shall
not have been satisfied at the time of the End Date, the End Date shall automatically be extended to the date that is three (3) Business
Days after the date of the Scheduled Court Hearing Date; provided, further, that the right to terminate this Agreement
pursuant to this Section 8.1(c) shall not be available to the Party seeking to terminate if such Party is in
breach of, or has breached, in any material respect, any of its obligations under this Agreement required to be performed on or
prior to the Effective Date, where such breach has been the primary cause of the failure of the Effective Date to occur on or
before the End Date;
(d) by
written notice from the Company if there shall have been a material breach of or material failure to perform any representation,
warranty, covenant or agreement on the part of BidCo contained in this Agreement, or any such representation or warranty shall
be untrue in any material respect, which breach, failure to perform or failure to be true, individually or in the aggregate, would
result in a condition set forth in Section 7.3(a) or Section 7.3(b) not being satisfied and,
in either such case, such breach or failure is not cured prior to the earlier of (A) thirty (30) Business Days after written
notice thereof is given by the Company to BidCo or (B) the End Date; provided, that (x) the Company shall have
first given BidCo written notice at least thirty (30) Business Days prior to such termination (or promptly, if such written notice
is given within thirty (30) Business Days prior to the End Date), stating the Company’s intention to terminate this Agreement
pursuant to this Section 8.1(d) and the basis for such termination and (y) the Company shall not have the
right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of
any of its representations, warranties, covenants or agreements contained in this Agreement; or
(e) by
written notice from BidCo if:
(i) there
shall have been a material breach of or material failure to perform any representation, warranty, covenant or agreement on the
part of the Company contained in this Agreement, or any such representation or warranty shall be untrue in any material respect,
which breach, failure to perform or failure to be true, individually or in the aggregate, would result in a condition set forth
in Section 7.2(a) or Section 7.2(b) not being satisfied and, in either such case, such breach
or failure is not cured prior to the earlier of (A) thirty (30) Business Days after written notice thereof is given by BidCo
to the Company or (B) the End Date; provided, that (x) BidCo shall have first given the Company written notice
at least thirty (30) Business Days prior to such termination (or promptly, if such written notice is given within thirty (30)
Business Days prior to the End Date), stating BidCo’s intention to terminate this Agreement pursuant to this Section 8.1(e)(i) and
the basis for such termination and (y) BidCo shall not have the right to terminate this Agreement pursuant to this Section 8.1(e)(i) if
BidCo is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(ii) the
Board shall have made, prior to obtaining the Company Requisite Vote, a Change of Recommendation; or
(f) by
either BidCo or the Company if the Company Requisite Vote shall not have been obtained at the Company Shareholders Meetings duly
convened therefor or at any adjournment or postponement thereof, in each case, at which a vote on the approval of the Acquisition
was taken;
(g) by
the Company at any time prior to the time the Company Requisite Vote is obtained, in order to enter into an Alternative Acquisition
Agreement with respect to a Superior Proposal in compliance with Section 6.2(b); provided, however,
that the Company shall have concurrently with such termination paid or caused to be paid to BidCo the Company Termination Payment
pursuant to Section 8.2(b); or
(h) by
the Company if (i) the conditions set forth in Section 7.1 and Section 7.2 (other than the condition
set forth in Section 7.1(a)(iii) and any other condition capable of satisfaction only at the Court Hearing, but
subject to the fulfillment or waiver of those conditions on the date of the Court Hearing) have been satisfied or waived in accordance
with this Agreement, (ii) the Marketing Period has ended and the Company has irrevocably and unconditionally confirmed by
written notice to BidCo after the end of the Marketing Period that (x) all conditions set forth in Section 7.3
have been satisfied (other than the condition set forth in Section 7.1(a)(iii) and any other condition capable
of satisfaction only at the Court Hearing, but subject to the fulfillment or waiver of those conditions on the date of the Court
Hearing) or that it will irrevocably and unconditionally waive any unsatisfied condition in Section 7.3, (y) it
is prepared, willing and able to consummate the Acquisition and (z) it intends to terminate this Agreement pursuant to this
Section 8.1(h), (iii) BidCo fails to consummate the Acquisition within three (3) Business Days after the
delivery of such notice (and the Company has not revoked, withdrawn, modified or conditioned such notice) and (iv) at all
times during such three (3) Business Day period, the Company stood ready, willing and able to consummate the Acquisition
and the other transactions contemplated hereby.
Section 8.2 Effect
of Termination.
(a) Notwithstanding
anything to the contrary in this Agreement, in the event of the valid termination of this Agreement pursuant to Section 8.1,
this Agreement shall forthwith become void and of no effect and there shall be no liability or obligation on the part of any Party
hereto (or any direct or indirect equity holder, partner, controlling person, member, manager, director, officer, employee, Affiliate
or Representative of such Party or such Party’s Affiliates or any of the foregoing’s successors or assigns), except,
subject in all respects to this Section 8.2, Section 9.12 and Section 9.17 (including, in
each case, the limitations set forth therein), as provided in Section 6.7(c), Section 6.9, Section 6.13(i),
this Section 8.2, Section 8.3 and Article IX, which shall survive such valid termination,
in each case, in accordance with its terms and conditions; provided, that, subject in all respects to this Section 8.2,
Section 9.12 and Section 9.17 (including, in each case, the limitations set forth therein), (i) nothing
herein shall relieve any Party hereto of any liability for damages resulting from such Party’s fraud prior to such valid
termination and (ii) nothing herein shall relieve the Company of any liability for damages resulting from the Company’s
or any of its subsidiaries’ Willful Breach prior to such valid termination (which, in the case of each of clauses (i) and
(ii), the Parties acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs, and in the case
of any damages sought by the non-breaching Party, including any damages sought by BidCo for any Willful Breach, such damages shall
include the benefit of the bargain lost by such non-breaching party, taking into consideration relevant matters including opportunity
cost and the time value of money); provided, however, that in no event will the BidCo Related Parties have any liability
for monetary damages (including damages for fraud, monetary damages in lieu of specific performance or otherwise) in the aggregate
in excess of the BidCo Termination Fee, subject in all respects to the limitations set forth in Section 8.2(g) and
Section 9.17. The Parties acknowledge and agree that nothing in this Section 8.2 shall be deemed to affect
their right to specific performance in accordance with the terms and conditions set forth in Section 9.12.
(b) In
the event that:
(i) (A) this
Agreement is validly terminated by the Company pursuant to Section 8.1(g) or (B) this Agreement is validly
terminated by BidCo pursuant to Section 8.1(e)(ii), then the Company shall pay the Company Termination Payment to
BidCo (or one (1) or more of its designees), at or prior to the time of termination in the case of a termination pursuant
to Section 8.1(g), or in any other case as promptly as reasonably practicable (and, in any event, within two (2) Business
Days following such termination), payable by wire transfer of immediately available funds;
(ii) this
Agreement is validly terminated by either BidCo or the Company pursuant to Section 8.1(f) or Section 8.1(c) or
by BidCo pursuant to Section 8.1(e)(i) and (A) at any time after the date of this Agreement and prior to
the Company Shareholders Meetings an Acquisition Proposal shall have been made to the Company or its Representatives, to the Company
Shareholders or shall have otherwise become publicly known and (B) within twelve (12) months after such termination, the
Company or any of its subsidiaries shall have entered into a definitive agreement providing for an Acquisition Proposal, or shall
have consummated an Acquisition Proposal, then, in any such event, the Company shall pay to BidCo (or one (1) or more of
its designees) the Company Termination Payment, such payment to be made concurrently with the earlier of the entry into such definitive
agreement with respect to such Acquisition Proposal and two (2) Business Days from the consummation of such Acquisition Proposal,
by wire transfer of immediately available funds; provided, that if a fee has previously been paid pursuant to clause (iii) below,
then the amount of such Company Termination Payment shall be reduced by the payment made pursuant to clause (iii). For the purpose
of this Section 8.2(b)(ii), all references in the definition of the term “Acquisition Proposal” to “fifteen
percent (15%) or more” will be deemed to be references to “more than fifty percent (50%)”;
(iii) this
Agreement is validly terminated by BidCo pursuant to Section 8.1(e)(i) and prior to such termination an Acquisition
Proposal shall have been made and becomes publicly known, the Company shall pay to BidCo (or one (1) or more of its designees)
by wire transfer of immediately available funds an amount equal to $16,300,000, at or prior to the time of such termination; or
(iv) (A) this
Agreement is (1) validly terminated by the Company pursuant to Section 8.1(h) and (2) BidCo’s
failure to consummate the Acquisition is a result of the Debt Financing Sources under the Debt Financing failure to fund the Debt
Financing in full and/or the full proceeds of the Debt Financing are not available to BidCo on the date that the Effective Date
should have occurred; or (B) this Agreement is (1) validly terminated by the Company pursuant to Section 8.1(d) and
(2) the material breach or material failure by BidCo is the primary reason for the failure of the Acquisition to be consummated;
provided, that prior to any such termination, the Company has irrevocably and unconditionally confirmed in writing to BidCo
that it stands ready, willing and able to consummate the Acquisition and the other transactions contemplated hereunder, then,
in consideration of the Company irrevocably and unconditionally agreeing not to (and causing its Affiliates not to) exercise,
and agreeing to waive, any and all claims and rights it (or its Affiliates) may have against the BidCo Related Parties under,
in connection with or related to this Agreement, the BidCo Guarantee, the Commitment Letters, any other agreement referenced herein
or therein and the transactions contemplated hereby or thereby or otherwise, BidCo shall pay to the Company a fee in cash of $93,800,000
(the “BidCo Termination Fee”) by wire transfer of immediately available funds, such payment to be made within
two (2) Business Days of the applicable valid termination.
(c) The
Parties acknowledge and hereby agree that each of the BidCo Termination Fee and the Company Termination Payment, as applicable,
if, as and when required pursuant to this Section 8.2, shall not constitute a penalty but will be liquidated damages,
in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the
efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and
on the expectation of the consummation of the Acquisition, which amount would otherwise be impossible to calculate with precision.
The Parties acknowledge and hereby agree that in no event shall either the Company be required to pay the Company Termination
Payment or BidCo be required to pay the BidCo Termination Fee, as the case may be, on more than one (1) occasion even if
such fee may be payable pursuant to more than one provision of this Agreement at the same time or at different times and/or upon
the occurrence of different events.
(d) Each
of the Company and BidCo acknowledges that the agreements contained in this Section 8.2 are an integral part of the
transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement.
If the Company fails to timely pay an amount due pursuant to Section 8.2(b)(i), Section 8.2(b)(ii) or
Section 8.2(b)(iii) or BidCo fails to timely pay an amount due pursuant to Section 8.2(b)(iv), and,
in order to obtain such payment, BidCo, on the one hand, or the Company, on the other hand, commences a suit that results in a
final and non-appealable judgment against the Company for the amount set forth in Section 8.2(b)(i), Section 8.2(b)(ii) or
Section 8.2(b)(iii) or any portion thereof, or a final and non-appealable judgement against BidCo for the amount
set forth in Section 8.2(b)(iv), the Company shall pay to BidCo, or BidCo shall pay to the Company, its reasonable
and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and the
reasonable and documented out-of-pocket fees and expenses of any expert or consultant engaged by the Company) up to a maximum
aggregate amount of $500,000 in connection with such suit, together with interest on the amount of such payment from the date
such payment was required to be made until the date of payment at the prime rate as published in The Wall Street Journal, Eastern
Edition in effect on the date of such payment. Any amount payable pursuant to this Section 8.2(d) shall be
paid by the applicable Party by wire transfer of same day funds prior to or on the date such payment is required to be made under
this Section 8.2(d).
(e) Notwithstanding
anything to the contrary in this Agreement, any Transaction Document or any other agreement referenced herein or therein or otherwise,
but subject in all respects to this Section 8.2, Section 9.12 and Section 9.17 (including,
in each case, the limitations set forth therein), if BidCo fails to consummate the Acquisition for any or no reason or otherwise
breaches this Agreement or any Transaction Document (whether such breach is intentional, unintentional, willful or otherwise)
or fails to perform hereunder or thereunder (whether such failure is intentional, unintentional, willful or otherwise), then the
Company’s right to (A) validly terminate this Agreement pursuant to Section 8.1 and (B) seek one or
all of (but never receive both) (i) monetary damages for BidCo’s fraud and (ii) if, as and when required pursuant
to Section 8.2(b)(iv), receipt and payment of the BidCo Termination Fee shall be the sole and exclusive remedy (whether
at Law, in equity, in Contract, in tort or otherwise) of the Company, its Affiliates and its and their respective Company Shareholders
and Representatives and any other Person against the BidCo Related Parties for any breach, liability, cost, expense, obligation,
loss or damage suffered as a result thereof or in connection therewith or related thereto. Notwithstanding anything to the contrary,
under no circumstances can the Company receive both (i) an award of monetary damages, on the one hand, and (ii) any
of the BidCo Termination Fee and/or any of the amounts, if any, as and when due, pursuant to Section 8.2(d), on the
other hand.
(f) Except
as provided in Section 8.2(e), no BidCo Related Party will have any liability or obligation to the Company, its Affiliates
or any of their respective Company Shareholders or Representatives (or any other Person), including any multiple, consequential,
indirect, special, statutory, exemplary or punitive damages, relating to or arising out of this Agreement or any other Transaction
Document or any documents referenced herein or therein or the transactions contemplated hereby or thereby or any breach of any
representation, warranty or covenant contained herein or therein, or the failure of such transactions to be consummated, or in
respect of any other Contract, document or theory of Law or equity or in respect of any representations made or alleged to be
made in connection herewith or therewith, whether in equity or at Law, in Contract, in tort or otherwise. The Company acknowledges
and agrees that none of BidCo and the Debt Financing Sources (collectively with their respective Affiliates and their and their
respective Affiliates’ former, current, or future general or limited partners, equity holders, directors, officers, managers,
members, employees, Representatives or agents and their respective successors and assigns, the a “Debt Financing Source
Related Parties”) shall have any liability or obligation to the Company, its Affiliates or any of their respective equity
holders or Representatives (or any other Person) arising out of their breach or failure to perform (whether willfully, intentionally,
unintentionally or otherwise) any of their obligations under the Debt Commitment Letter. Without limiting the foregoing, upon
payment of the BidCo Termination Fee, if, as and when required pursuant to Section 8.2(b)(iv), no BidCo Related Party
shall have any further liability or obligation to the Company, its Affiliates or any of their respective equity holders or Representatives
(or any other Person), including any multiple, consequential, indirect, special, statutory, exemplary or punitive damages, relating
to or arising out of this Agreement or any other Transaction Document or any documents referenced herein or therein or the transactions
contemplated hereby or thereby or in respect of any representation, warranty or covenant contained herein or therein, or the failure
of such transactions to be consummated, or in respect of any other Contract, document or theory of Law or equity or in respect
of any representations made or alleged to be made in connection herewith or therewith, whether in equity or at Law, in Contract,
in tort or otherwise.
(g) Notwithstanding
anything to the contrary in this Agreement, any other Transaction Document or any other agreement referenced herein or therein
or otherwise, subject to Section 9.12, the maximum aggregate liability of the BidCo Related Parties under the Transaction
Documents or otherwise collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional
or otherwise, or monetary damages in lieu of specific performance), or in connection with the failure of the transactions contemplated
hereby or thereby (including the Financing) to be consummated, or in respect of any representation made or alleged to have been
made in connection herewith or therewith, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment
of the BidCo Termination Fee and any other payment in connection with any Transaction Document or otherwise, shall not exceed
under any circumstances an amount equal to the sum of (i) the BidCo Termination Fee, if any, due and owing to the Company
pursuant to Section 8.2(b)(iv) plus (ii) the costs and expenses of the Company, if any, due and owing
to the Company pursuant to Section 8.2(d) (the “Maximum Liability Amount”), and in no event
shall the Company, its Affiliates or any of the foregoing’s respective Representatives seek, directly or indirectly, to
recover against the BidCo Related Parties, or compel payment by the BidCo Related Parties of, any damages or other payments whatsoever
(including multiple, consequential, indirect, special, statutory, exemplary or punitive damages) in excess of the BidCo Termination
Fee.
Section 8.3 Expenses.
Except as otherwise specifically provided herein, each Party shall bear its own expenses in connection with this Agreement and
the transactions contemplated hereby. Expenses incurred in connection with obtaining any consents or making any filings shall
be shared equally by BidCo and the Company. Expenses incurred in connection with the filing, printing and mailing of each of the
Proxy Statement and the Circular shall be shared equally by BidCo and the Company.
Article IX
GENERAL
PROVISIONS
Section 9.1 Non-Survival
of Representations, Warranties, Covenants and Agreements. None of the representations, warranties, covenants and agreements
in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of
such representations, warranties, covenants and agreements, shall survive the Effective Date, except for (a) those covenants
and agreements that by their terms contemplate performance after the Effective Date or otherwise expressly by their terms survive
the Effective Date and (b) those contained in this Article IX, which, in each case, shall survive in accordance
with its terms and conditions.
Section 9.2 Modification
or Amendment. At any time prior to the Effective Date, subject to the provisions of applicable Laws, the Parties may
modify, supplement or amend this Agreement by written agreement, authorized by or on behalf of their respective boards of directors
and executed and delivered by duly authorized officers of the respective Parties; provided, however, that after
receipt of the Company Requisite Vote, if any such modification, supplement or amendment shall by applicable Law or in accordance
with the rules and regulations of Nasdaq requires further approval of the Company Shareholders, the effectiveness of such
modification, supplement or amendment shall be subject to such approval of the Company Shareholders. Notwithstanding anything
to the contrary in the foregoing, no modifications, supplements or amendments to Section 8.2, this Section 9.2,
Section 9.3, Section 9.7, Section 9.8, Section 9.9, Section 9.12,
Section 9.13, Section 9.14 and Section 9.17 (and any provision of this Agreement to the extent
a modification, supplement or amendment of such provision would modify the substance of any of the foregoing provisions) shall
be permitted in a manner adverse to any Debt Financing Source Related Party without the prior written consent of such Debt Financing
Source Related Party.
Section 9.3 Waiver.
At any time prior to the Effective Date, any Party may (a) extend the time for the performance of any of the obligations
or other acts of the other Parties, (b) waive any inaccuracies in the representations and warranties by any other Party contained
herein or in any document delivered pursuant hereto and (c) subject to the requirements of applicable Law, waive compliance
by any other Party with any of the agreements or conditions contained herein; provided, however, that after receipt
of the Company Requisite Vote, if any such waiver shall by applicable Law or in accordance with the rules and regulations
of Nasdaq require further approval of the Company Shareholders, the effectiveness of such waiver shall be subject to such approval
of the Company Shareholders. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the
Party or Parties to be bound thereby and specifically referencing this Agreement. The failure of any Party to assert any rights
or remedies shall not constitute a waiver of such rights or remedies, nor shall any single or partial exercise thereof preclude
any other or further exercise of any other right or remedy hereunder. Notwithstanding anything to the contrary in the foregoing,
no waiver to Section 8.2, Section 9.2, this Section 9.3, Section 9.7, Section 9.8,
Section 9.9, Section 9.12, Section 9.13, Section 9.14 and Section 9.17
(and any provision of this Agreement to the extent a waiver of such provision would modify the substance of any of the foregoing
provisions) shall be permitted in a manner adverse to any Debt Financing Source Related Party without the prior written consent
of such Debt Financing Source Related Party.
Section 9.4 Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by email, by nationally recognized overnight courier service
(with proof of service) or by registered or certified mail (postage prepaid, return receipt requested) and shall be deemed given
and effective (i) when so delivered in person, (ii) when transmitted via email (if no “system” error or
other notice of non-delivery is generated) to the applicable party and its legal counsel set forth below, (iii) on the Business
Day following the day on which the same has been delivered to a nationally recognized overnight courier service or in the case
of express mail (charges prepaid) or (iv) three (3) Business Days after being so mailed. Such notices and communications
shall be delivered to the respective Parties at the following addresses or email addresses as follows:
(a) if
to BidCo:
Catalyst Holdings
Limited
c/o Apollo Management
IX, L.P.
9 West 57th
Street, 43rd Floor
New York, New York
10019
Attention: Robert
Kalsow-Ramos, Partner
Email: rkalsow-ramos@apollo.com
with an additional copy
(which shall not constitute notice) to:
Paul, Weiss, Rifkind,
Wharton & Garrison LLP
1285 Avenue of the
Americas
New York, NY 10019-6064
Attention: Taurie
M. Zeitzer
Brian
Scrivani
Email: tzeitzer@paulweiss.com
bscrivani@paulweiss.com
(b) if
to the Company:
Cardtronics plc
2050 W. Sam Houston
Parkway South
Suite 1300
Houston, TX 77042
Attention: General
Counsel
Email: akilleen@cardtronics.com
with an additional copy
(which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York
10153
Attention: Michael J. Aiello
Jackie
Cohen
E-mail: michael.aiello@weil.com
jackie.cohen@weil.com
and
Ashurst LLP
London Fruit & Wool Exchange
1 Duval Square, London, E1 6PW
Attention: Karen
Davies
Nick
Williamson
E-mail: Karen.davies@ashurst.com
Nick.williamson@ashurst.com
or at such other address or email address
for a Party as shall be specified by like notice and such notice shall be deemed to have been delivered as of the date so telecommunicated,
personally delivered or received. Any Party may notify any other Party of any changes to the address or any of the other details
specified in this paragraph; provided, however, that such notification shall only be effective on the date specified
in such notice or two (2) 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 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. Each Party consents to service of any process, summons, notice
or document that may be served in any proceeding in the Delaware Court of Chancery or the United States District Court for the
District of Delaware, which service shall be in accordance with this Section 9.4.
Section 9.5 Certain
Definitions. For purposes of this Agreement, the term:
(a) “Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control
with such Person, through one (1) or more intermediaries or otherwise; provided, that (other than in the case of the
definition of “BidCo Related Party,” Article VIII and Section 9.17) in no event shall BidCo
or any of its subsidiaries be considered an Affiliate of Apollo Global Management, Inc. or any portfolio company or investment
fund affiliated with Apollo Global Management, Inc., nor shall any portfolio company or investment fund affiliated with or
managed directly or indirectly by an Affiliate of Apollo Global Management, Inc. be considered an Affiliate of BidCo or any
of its subsidiaries;
(b) “Alternative
Acquisition Agreement” means, other than an Acceptable Confidentiality Agreement, any acquisition agreement, merger
agreement, arrangement agreement, option agreement, joint venture agreement, partnership agreement, license agreement, letter
of intent, memorandum of understanding, commitment, agreement in principle or any other similar agreement or document with respect
to or relating to any Acquisition Proposal.
(c) “Anti-Corruption
Laws” means all applicable Laws and agreements with Governmental Entities and all other statutory or regulatory requirements
relating to anti-corruption, anti-bribery and anti-money laundering, including the U.S. Foreign Corrupt Practices Act of 1977
and any Law implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
(d) “Anti-Money
Laundering Laws” means applicable Laws related to money laundering, including the U.S. Currency and Foreign Transaction
Reporting Act of 1970, as amended (also known as the Bank Secrecy Act), the U.S. Money Laundering Control Act of 1986, as amended,
the U.K. Proceeds of Crime Act 2002 and any other applicable Law related to money laundering of any jurisdictions in which the
Company or any subsidiary of the Company conducts business, including any anti-racketeering Laws involving money laundering or
bribery as a racketeering act;
(e) “Benefit
Plan” means any pension, profit-sharing, savings, retirement, employment, collective bargaining, consulting, severance,
termination, executive compensation, incentive compensation, deferred compensation, bonus, stock purchase, stock option, phantom
stock or other equity-based compensation, change-in-control, retention, salary continuation, vacation or sick pay policy, disability,
death benefit, group insurance, hospitalization, medical, dental, life (including all individual life insurance policies as to
which the Company or any of its subsidiaries is the owner, the beneficiary or both), Code Section 125 “cafeteria”
or “flexible” benefit, employee loan, educational assistance or fringe benefit plan, program, policy, practice, agreement
or arrangement, whether formal or informal, including each “employee benefit plan” (within the meaning of Section 3(3) of
ERISA) and other employee benefit plan, program, policy, practice, agreement or arrangement, whether or not subject to ERISA;
(f) “BidCo
Related Party” means BidCo, the Debt Financing Source Related Parties and any other financing sources of BidCo, the
Guarantors and any of the foregoing’s respective former, current or future Affiliates and any of the foregoing’s respective
former, current or future, direct or indirect, officers, directors, other fiduciaries, employees, affiliates, equity holders,
managers, members, partners, agents, attorneys, advisors or other Representatives or any of the foregoing’s respective successors
or assigns;
(g) “Business
Day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the
case of determining a date when any payment is due, any day other than a Saturday or Sunday or a day on which banks are required
or authorized to close in the City of New York, New York and the City of London, England;
(h) “Card
Association” means VISA U.S.A., Inc. and Visa International, Inc., MasterCard International, Inc., Discover
Financial Services, LLC, American Express, Diners Club, Voyager, Carte Blanche, PayPal and any other card association, debit card
network or similar entity and any legal successor organization or association of any of them;
(i) “Card
Association Rules” means the rules, regulations, bylaws, standards, policies and procedures of the Card Associations
related to the security of cardholder information, including the Payment Card Industry Data Security Standards (PCI-DSS);
(j) “CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act;
(k) “Circular”
means the circular to be issued by the Company to the Company Shareholders setting out, among other things, the terms and conditions
of the Acquisition and the notice of the Court Meeting and the General Meeting, which also constitutes a proxy statement prepared
in accordance with Section 14(a) of the Exchange Act;
(l) “Company
Credit Facilities” means, collectively, the Company Term Credit Facility and the Company Revolving Credit Facility;
(m) “Company
Requisite Vote ” means: (i) the approval by a majority in number representing not less than seventy-five (75%)
in value of shareholders who are on the register of members of the Company (or the relevant class or classes thereof), present
and voting (and who are entitled to vote), whether in person or by proxy, at the Court Meeting and at any separate class meeting
which may be required (or any adjournment thereof); and (ii) the due passing by the requisite majority of the shareholders
who are on the register of members of the Company of the resolutions required to implement the Scheme at the General Meeting (or
any adjournment thereof);
(n) “Company
Revolving Credit Facility” means the Second Amended and Restated Credit Agreement, dated as of November 19, 2018
(as amended by Amendment No. 1, dated as of September 19, 2019, Amendment No. 2, dated as of May 29, 2020,
and Amendment No. 3, dated as of June 29, 2020), by and among the Company, the other obligors party thereto, the lenders
party thereto and JPMorgan Chase Bank, N.A., as administrative agent;
(o) “Company
Term Credit Facility” means the Term Loan Credit Agreement, dated as of June 29, 2020, by and among the Company,
Cardtronics USA, Inc., a Delaware corporation, the other obligors party thereto, the lenders party thereto and JPMorgan Chase
Bank, N.A., as administrative agent;
(p) “Company
Termination Payment” means an amount equal to $32,600,000;
(q) “Compliant”
means, with respect to the Required Information, that (i) such Required Information does not contain any untrue statement
of a material fact regarding the Company and its subsidiaries, or omit to state any material fact regarding the Company and its
subsidiaries necessary in order to make such Required Information not misleading under the circumstances, (ii) such Required
Information complies in all material respects with all applicable requirements of Regulation S-K and Regulation S-X under the
Securities Act for a registered public offering of non-convertible debt securities on a registration statement on Form S-1
that would be applicable to such Required Information (other than such provisions for which compliance is not customary in a Rule 144A
offering of high yield debt securities) and (iii) the financial statements and other financial information included in such
Required Information would not be deemed stale or otherwise be unusable under customary practices for offerings and private placements
of high-yield debt securities under Rule 144A promulgated under the Securities Act and the Company’s independent accountants
have confirmed they are prepared to issue a customary comfort letter to the Debt Financing Sources with respect to the offering
of any debt securities in connection with the Debt Financing subject to their completion of customary procedures, including as
to negative assurances and change period, in order to consummate an offering of debt securities on any day during the Marketing
Period;
(r) “Contract”
means any loan, guarantee of indebtedness or credit agreement, debenture, note, bond, mortgage, indenture, guarantee, license,
deed of trust, lease, purchase or sale order or other contract, commitment, agreement, instrument, obligation, arrangement, understanding,
undertaking, permit, concession or franchise, whether written or oral (each, including all amendments, modifications, supplements
or restatements thereto);
(s) “control”
(including the terms “controlling,” “controlled,” “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 policies of a Person, whether through the ownership of voting securities, by Contract or otherwise;
(t) “Court”
means the High Court of Justice in England and Wales;
(u) “Court
Hearing” means the hearing by the Court of the petition to sanction the Scheme (and to grant the Court Order);
(v) “Court
Meeting” means the meeting of Company Shareholders (and any adjournment, postponement or reconvention thereof) to be
convened by order of the Court pursuant to section 896 of CA 2006 in order for the Company Shareholders to consider and, if thought
fit, approve the Scheme;
(w) “Court
Order” means the order of the Court sanctioning the Scheme under section 899 of CA 2006;
(x) “ERISA
Affiliate” means any entity that, together with the Company or any of its subsidiaries, would be treated as a single
employer under Section 4001 of ERISA or Section 414 of the Code;
(y) “Excluded
Information” means (i) pro forma financial statements, (ii) information regarding any post-Effective Date
or pro forma cost savings, synergies, capitalization, ownership or other post-Effective Date pro forma adjustments desired to
be incorporated into any information used in connection with the Debt Financing, (iii) any description of all or any portion
of the Financing, including any “description of notes,” (iv) risk factors relating to all or any component of
the Financing or (v) any other information required by Rules 3-10 or 3-16 of Regulation S-X under the Securities Act,
any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the Securities Act
or any other information customarily excluded from an offering memorandum for private placements of any non-convertible high-yield
debt securities under Rule 144A promulgated under the Securities Act;
(z) “Excluded
Shares” means (i) any Company Shares legally or beneficially held by BidCo or any of its subsidiary undertakings
(or any nominee on its or their behalf); (ii) any Company Shares held in treasury or owned, directly or indirectly, by the
Company or any of its subsidiaries; and (iii) any Company Shares acquired by BidCo or its designee(s) pursuant to the
Contribution Agreement;
(aa) “GAAP”
means, with respect to any date of determination, U.S. generally accepted accounting principles as in effect on such date of determination,
consistently applied;
(bb) “General
Meeting” means the general meeting of the Company Shareholders (including any adjournment, postponement or reconvention
thereof) to be convened in connection with the Scheme in order for the Company Shareholders to consider and, if thought fit, approve
certain matters in connection with the Scheme and the Acquisition, notice of which is to be set out in the Circular (including
any adjournment, postponement or reconvention thereof);
(cc) “Government
Official” means (i) any official, officer, employee or Representative of, or any Person acting in an official capacity
for or on behalf of, any Governmental Entity, (ii) any political party or party official or candidate for political office
or (iii) any company, business, enterprise or other entity owned, in whole or in part, or controlled by any Person described
in the foregoing clause (i) or (ii) of this definition;
(dd) “Governmental
Entity” means any governmental or regulatory authority, agency, commission, body, department, board, instrumentality,
taxing or administrative functions of or pertaining to government, court, tribunal or arbitrator of competent jurisdiction or
other legislative, executive or judicial governmental entity or any quasi-governmental authority, governmental or non-governmental
self-regulatory organization, agency or authority, in each case whether federal, state, local, county, provincial, and whether
domestic or foreign;
(ee) “Indenture”
means the Indenture, dated as of April 4, 2017, by and among Cardtronics, Inc., Cardtronics USA, Inc. and Wells
Fargo Bank, National Association;
(ff) “Information
Privacy and Security Laws” means all applicable Laws and regulatory guidelines to which the Company or any of its subsidiaries
are bound concerning the privacy, protection, collection, receipt, access, use, maintenance, processing, disposal, transfer and/or
security of Personal Information, including the following, to the extent applicable: the Federal Trade Commission Act, the Card
Association Rules, the California Consumer Privacy Act, state data security laws, state data breach notification laws, the General
Data Protection Regulation (EU) 2016/679, the Privacy and Electronic Communications Directive 2002/58/EC (and their respective
implementing Laws adopted in applicable European Union member states and the U.K.), applicable Laws relating to the transfer of
Personal Information and any applicable Laws concerning requirements for website and mobile application privacy policies;
(gg) “Intellectual
Property” means any of the following, as they exist anywhere in the world, whether registered or unregistered: (i) patents,
including divisionals, continuations, continuations-in-part, reissues or reexaminations thereof, and inventions; (ii) copyrights,
designs and works of authorship; (iii) Software; (iv) trademarks, service marks, domain names, corporate names, logos,
and trade dress, and all goodwill associated with or symbolized by any of the foregoing; (v) trade secrets and confidential
and proprietary know-how, processes, databases, business information and other confidential and proprietary information; and (vi) all
other intellectual property rights of any kind or nature;
(hh) “Intervening
Event” means any fact, event, development, change, effect or occurrence with respect to the Company and its subsidiaries,
taken as a whole, that (i) was not known or reasonably foreseeable (with respect to substance or timing) to the Board, or
a committee thereof, as of or prior to the date hereof and (ii) first becomes known to the Board after the execution of this
Agreement and at any time prior to the time the Company Requisite Vote is obtained; provided, however, that any
event, change, development, circumstance, fact or occurrence (1) that is set forth in clauses (i) through (vii) of
subsection (A) of the definition of “Material Adverse Effect”; (2) that involves or relates to an Acquisition
Proposal or a Superior Proposal (which, for purposes of this definition, shall be read without reference to any percentages set
forth in the definitions of “Acquisition Proposal” and “Superior Proposal”) or any inquiry or communications
or matters relating thereto, (3) resulting from a breach of this Agreement by the Company, or (4) resulting from any
event, change, development, circumstance or fact after the execution and delivery of this Agreement in the market price or trading
volume of the Company Shares, individually or in the aggregate, shall not be deemed to constitute an Intervening Event.
(ii) “IT
Assets” means all computer systems, hardware, firmware, middleware, interfaces, systems, networks and information technology
equipment owned by the Company or any of its subsidiaries;
(jj) “knowledge”
(i) with respect to the Company and its subsidiaries, means the actual knowledge of any of the individuals listed in Section 9.5(jj)
of the Company Disclosure Letter and (ii) with respect to BidCo, means the actual knowledge of the individuals listed
in Section 9.5(jj) of the BidCo Disclosure Letter;
(kk) “Law”
means any federal, national, state, local, municipal, foreign or other law, statute, constitution, principle of common law, ordinance,
code, decree, order, judgment, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise
put into effect by or under the authority of any Governmental Entity;
(ll) “Leased
Real Property” means all real property leased or subleased or otherwise used or occupied by the Company or any subsidiary
of the Company, other than leases with customers of the Company or any of its subsidiaries related to ATM deployments;
(mm) “Leases”
means all leases, subleases, licenses, concessions and other Contracts, including all amendments, modifications, guaranties, extensions
and renewals thereto, other than (i) Contracts with any customers of the Company or any of its subsidiaries and (ii) equipment
leases;
(nn) “Lien”
means any lien, claim, mortgage, deed of trust, pledge, security interest, restriction, lease, license, easement, claim, charge
or other encumbrance, acceleration of any material obligation or the loss of a material benefit under any loan, guarantee of indebtedness
or credit agreement, note, bond, mortgage, deed of trust, indenture, agreement, contract, instrument, permit, concession, franchise,
right or license binding upon the Company or any of the Company’s subsidiaries, in each case, whether voluntarily occurred
or arising by operation of Law;
(oo) “Marketing
Period” means the first (1st) period (i) commencing after the date of this Agreement throughout and at the end
of which (A) BidCo has the Required Information and the Required Information is Compliant, (B) the conditions set forth
in Article VII are satisfied (other than the condition set forth in Section 7.1(a)(iii) and any other
condition capable of satisfaction only at the Court Hearing, but subject to the fulfillment or waiver of those conditions on the
date of the Court Hearing) and (C) nothing has occurred and no condition exists that would cause any of the conditions set
forth in Section 7.1, Section 7.2 and Section 7.3 to fail to be satisfied (other than the
condition set forth in Section 7.1(a)(iii) and any other condition capable of satisfaction only at the Court
Hearing, but subject to the fulfillment or waiver of those conditions on the date of the Court Hearing), assuming that the date
of the Court Hearing were to be scheduled at any time during such period and (ii) the last day of which shall be no later
than the date that is twelve (12) Business Days after the Marketing Period commences pursuant to this definition; provided,
that (x) January 18, 2021, February 15, 2021 and May 31, 2021 shall not constitute Business Days for purposes
of the Marketing Period (provided, however, that such exclusions shall not restart such period) and (y) if
the Marketing Period has not been completed on or prior to December 21, 2020, such Marketing Period shall not commence until
January 4, 2021; provided, further, that (A) the Marketing Period shall end on any earlier date if the
Debt Financing is closed on such earlier date and (B) the Marketing Period shall not commence or be deemed to have commenced
if, after the date of this Agreement and prior to the completion of such period, (I) the Company’s independent accountants
shall have withdrawn their audit opinion with respect to any audited financial statements (or portion thereof) contained in or
that include the Required Information, in which case the Marketing Period shall not commence or be deemed to commence unless and
until, at the earliest, a new unqualified audit opinion is issued with respect to such audited financial statements (or portion
thereof) for the applicable periods by the independent accountants of the Company or another independent public accounting firm
of recognized national standing reasonably acceptable to BidCo, (II) the Company shall have publicly announced any intention
to, or determines that it must, restate any financial statements or other financial information included in or that includes the
Required Information or any such restatement is under active consideration and, in each case, such restatement renders or would
render the Required Information to be not Compliant, in which case the Marketing Period shall not commence or be deemed to commence
unless and until, at the earliest, such restatement has been completed and the applicable Required Information has been amended
and updated or the Company has announced that it has concluded that no restatement shall be required in accordance with GAAP,
(III) any Required Information would not be Compliant at any time during the Marketing Period or otherwise ceases to meet
the requirement of “Required Information” as defined, in which case the Marketing Period shall not commence or be
deemed to commence unless and until, at the earliest, such Required Information is updated or supplemented so that it is Compliant
and meets the definition of “Required Information” (it being understood that if any Required Information provided
at the commencement of the Marketing Period ceases to be Compliant or meet the definition of “Required Information”
during the Marketing Period, then the Marketing Period will be deemed not to have commenced) or (IV) the Company has failed
to file any report on Form 10-K, Form 10-Q or Form 8-K required to be filed with the SEC by the date required under
the Exchange Act as a result of which the Required Information ceases to be Compliant, in which case (1) in the case of a
failure to file a Form 10-K or Form 10-Q, the Marketing Period will not commence or be deemed to commence unless and
until, at the earliest, such reports have been filed and (2) in the case of a failure to file a Form 8-K, the Marketing
Period will be tolled until such report has been filed; provided, that if the failure to file such report occurs during
the final five (5) Business Days of the Marketing Period, the Marketing Period will be extended so that the final day of
the Marketing Period will be no earlier than the fifth (5th) Business Day after such report has been filed. If at any time the
Company shall in good faith reasonably believe that it has provided the Required Information, the Company may deliver to BidCo
a written notice to that effect (stating when it believes it completed such delivery), in which case the requirement to deliver
the Required Information will be deemed to have been satisfied as of the date of such notice, unless BidCo in good faith reasonably
believes the Company has not completed the delivery of the Required Information and, within three Business Days after the receipt
of such notice from the Company, delivers a written notice to the Company to that effect (stating with reasonable specificity
which Required Information the Company has not delivered);
(pp) “Material
Adverse Effect” means any state of facts, event, development, change, effect or occurrence that, individually or in
the aggregate with all such other states of facts, events, developments, changes, effects or occurrences, (A) has had, or
would reasonably be expected to have, a material adverse effect on or with respect to the business, results of operation or condition
(financial or otherwise), properties, assets or liabilities of the Company and its subsidiaries taken as a whole, provided,
that with respect to this clause (A), no events, developments, changes, effects or occurrences relating to, arising out of or
in connection with or resulting from any of the following shall be deemed, either alone or in combination, to constitute or contribute
to a Material Adverse Effect: (i) general changes or developments in the economy or the financial, debt, capital, credit
or securities markets in the U.S. or elsewhere in the world, including as a result of changes in geopolitical conditions, (ii) general
changes or developments in the industries in which the Company or its subsidiaries operate, (iii) the public announcement
of the Acquisition; provided, that this clause (iii) shall not apply to any representation or warranty set forth in
Article III that addresses the consequences of the announcement of this Agreement or the Acquisition), (iv) changes
in any applicable Laws or GAAP or interpretation thereof, (v) any hurricane, tornado, earthquake, flood, tsunami, natural
disaster, act of God, pandemic (including that resulting from the COVID-19, SARS-CoV-2 virus or any mutation or variation thereof),
or other comparable events or outbreak or escalation of hostilities or war (whether or not declared), military actions or any
act of sabotage, terrorism, or national or international political or social conditions, (vi) any decline in the market price
or trading volume of the Company Shares (provided, that the facts, circumstances, developments, events, changes, effects
or occurrences giving rise to or contributing to such decline may be deemed to constitute, or be taken into account in determining
whether there has been or will be, a Material Adverse Effect) or (vii) any failure by the Company to meet its internal or
published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations
(provided, that the facts, circumstances, developments, events, changes, effects or occurrences giving rise to or contributing
to such failure may be deemed to constitute, or be taken into account in determining whether there has been or will be, a Material
Adverse Effect); provided, however, that with respect to clause (i), (ii), (iv) or (v), such facts, circumstances,
developments, events, changes, effects or occurrences shall be taken into account to the extent they disproportionately and adversely
affect the Company and its subsidiaries, taken as a whole, compared to other companies operating in the industries in which the
Company and its subsidiaries operate or (B) prevents, materially impairs or delays, or could reasonably be expected to prevent,
impair or delay, the Company’s ability to perform its obligations under this Agreement and consummate the Acquisition and
the other transactions contemplated hereby in accordance with the terms hereof;
(qq) “Nasdaq”
means The NASDAQ Stock Market LLC;
(rr) “Open
Source Software” means any Software that is subject to or licensed, provided or distributed under any license meeting
the Open Source Definition (as promulgated by the Open Source Initiative as of the date of this Agreement) or the Free Software
Definition (as promulgated by the Free Software Foundation as of the date of this Agreement) or any similar license for “free,”
“publicly available” or “open source” Software, including the GNU General Public License, the Lesser GNU
General Public License, the Apache License, the BSD License, Mozilla Public License (MPL), the MIT License or any other license
that includes similar terms;
(ss) “Owned
Real Property” means all real property owned by the Company or any subsidiary of the Company;
(tt) “Permitted
Liens” means (A) statutory liens securing payments not yet due and payable, (B) easements, encumbrances, rights-of-way,
covenants, conditions, restrictions, encroachments, or other similar matters or restrictions, and any condition or other matter,
if any, that may be shown or disclosed by a current and accurate survey or physical inspection; provided, that in each
case the same does not materially affect the use of the properties or assets subject thereto or affected thereby or otherwise
materially impair business operations at such properties, (C) encumbrances for current Taxes or other governmental charges
not yet due and payable or for Taxes that are being contested in good faith by appropriate proceeding and for which adequate reserves
have been established and provided, (D) pledges or deposits made in the ordinary course of business to secure obligations
under workers’ compensation, unemployment insurance, social security, retirement and similar Laws or similar legislation
or to secure public or statutory obligations, (E) mechanics’, carriers’, workmen’s, repairmen’s or
other like encumbrances arising or incurred in the ordinary course of business for amounts which are not due and payable or which
are being contested in good faith by appropriate proceeding and for which adequate reserves have been established and provided,
(F) any right, title or interest of a lessor, sublessor or licensor under Leases, (G) zoning restrictions, entitlements,
easements, right-of-way, building and other land use regulations or other restriction on the use of Real Property, (H) licenses,
covenants or other rights of, to or under any Intellectual Property granted in the ordinary course of business, (I) Liens
set forth in Section 9.5(tt) of the Company Disclosure Letter (provided, that any Liens securing the Company
Credit Facilities shall be released on or prior to the Effective Date) and (J) such other imperfections in title, charges,
easements, restrictions and encumbrances that would not reasonably be expected to, individually or in the aggregate, be material
to the Company and its subsidiaries;
(uu) “Person”
means an individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, unincorporated organization, other entity or group (as defined in Section 13(d)(3) of
the Exchange Act), including, for the avoidance of doubt, any group of Persons;
(vv) “Personal
Information” means: (i) any information, in any form, that identifies or, could reasonably be used to identify,
an individual; (ii) payment card information; and (iii) any information that is governed, regulated or protected by
one (1) or more Information Privacy and Security Laws;
(ww) “Real
Property” means collectively, the Owned Real Property and the Leased Real Property;
(xx) “Related
Party” means any present or former director, officer, Company Shareholder, partner, member, employee or Affiliate (other
than subsidiaries of the Company) of the Company or any of its subsidiaries, and such Person’s Affiliates or immediate family
members;
(yy) “Representative”
means, with respect to any Person, its directors, officers, employees, consultants, investment bankers, attorneys, accountants,
agents and other advisors or representatives;
(zz) “Required
Information” means (i) all financial statements, financial data, audit reports and other information regarding
the Company and its subsidiaries of the type and form that would be required by Regulation S-X promulgated by the SEC and Regulation
S-K promulgated by the SEC for a registered public offering of debt securities on a registration statement on Form S-1 under
the Securities Act of the Company to consummate the offering of high-yield debt securities contemplated by the Debt Commitment
Letter (including all audited financial statements and all unaudited quarterly interim financial statements, in each case prepared
in accordance with GAAP applied on a consistent basis for the periods covered thereby, including applicable comparison period,
which will have been reviewed by the Company’s independent public accountants as provided in Statement on Auditing Standards
100); and (ii) such other pertinent and customary information regarding the Company and its subsidiaries (A) as may
be reasonably requested by BidCo (or the Debt Financing Sources) to the extent that such information is required in connection
with the financing contemplated by the Debt Commitment Letter and of the type and form customarily included in (I) marketing
documents used to syndicate credit facilities of the type contemplated by the Debt Commitment Letter or (II) an offering
memorandum for private placements of non-convertible high-yield bonds pursuant to Rule 144A promulgated under the Securities
Act or (B) as otherwise necessary to receive from the Company’s independent public accountants (and any other accountant
to the extent that financial statements audited or reviewed by such accountants are or would be included in such offering memorandum)
customary “comfort” (including “negative assurance” and change period comfort), together with drafts of
customary comfort letters that such independent public accountants are prepared to deliver upon the “pricing” of any
high-yield bonds being issued in connection with the Debt Financing, with respect to the financial information to be included
in such offering memorandum, in each case of clause (i) and (ii), assuming that such offering or syndication of the credit
facilities were consummated at the same time during the Company’s fiscal year as such offering or syndication will be made.
Notwithstanding anything to the contrary in clause (i) and (ii) of this definition, nothing will require the Company
to provide (or be deemed to require the Company to prepare) any Excluded Information;
(aaa) “Rollover
Seller” means Hudson Executive Capital LP;
(bbb) “Sanctioned
Person” means at any time any Person (i) listed on any Trade Law-related list of designated or blocked persons;
(ii) that is a Governmental Entity of, resident in, or organized under the Laws of a country or territory that is the target
of comprehensive sanctions under any Trade Laws, from time to time (as of the date of this Agreement, including Cuba, Iran,
North Korea, Syria and the Crimea region); or (iii) majority-owned or controlled by any of the foregoing;
(ccc) “Scheme”
means the scheme of arrangement to be proposed under section 899 of CA 2006 by the Company to implement the Acquisition, with
or subject to any modification, addition or condition approved or imposed by the Court and agreed to by BidCo;
(ddd) “Scheme
Documentation” means the Circular and any other documentation prepared in connection with the Scheme;
(eee) “Senior
Notes” means the 5.50% Senior Notes due 2025 issued pursuant to the Indenture;
(fff) “Software”
means computer software programs, including all source code, object code, firmware and documentation related thereto;
(ggg) “subsidiary”
or “subsidiaries” means, with respect to any Person, (i) any corporation, association or other business
entity (other than a partnership, joint venture or limited liability company) of which more than fifty percent (50%) of the total
voting power of shares of stock or other equity interests of such Person entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly
or indirectly, by such Person or one (1) or more of the other subsidiaries of that Person or a combination thereof and (ii) any
partnership, joint venture or limited liability company of which (A) more than fifty percent (50%) of the capital accounts,
distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one (1) or more of the other subsidiaries of that Person or a combination
thereof, whether in the form of membership, general, special or limited partnership interests or otherwise and (B) such Person
or any subsidiary of such Person is a controlling general partner or otherwise controls such entity;
(hhh) “Superior
Proposal” means a bona fide written Acquisition Proposal (with the percentages set forth in the definition of such term
changed from 15% to 75%), that did not result from a breach of Section 6.1 and that the Board has determined in its
good faith judgment after consultation with outside legal and financial advisors (i) is reasonably likely to be consummated
in accordance with its terms, taking into account all legal, financial, regulatory, timing and other aspects of the proposal (including
the financing thereof) and the Person making the proposal, and (ii) if consummated in accordance with its terms, would result
in a transaction more favorable from a financial point of view to the Company Shareholders than the transactions contemplated
hereby, in each case after taking into account any changes to the terms of this Agreement proposed in writing by BidCo in response
to such Superior Proposal pursuant to, and in accordance with, Section 6.2 and taking into account the time expected
to be required to consummate such Acquisition Proposal, any legal, financial, regulatory and approval requirements, the sources,
availability and terms of any financing, financing market conditions and the existence of a financing contingency, the likelihood
of termination, the timing of closing, and the identity of the Person or Persons making the Acquisition Proposal.
(iii) “Transaction
Documents” means, collectively, this Agreement, the Confidentiality Agreement, the BidCo Guarantee, the Commitment Letters
and any other agreement or document contemplated thereby or any document or instrument delivered in connection hereunder or thereunder;
(jjj) “Voting
Record Time” means, in relation to the Court Meeting or General Meeting, as the context requires, the date and time
to be specified in the Circular by reference to which entitlement to vote at the Court Meeting or General Meeting, as the case
may be, will be determined;
(kkk) “Warrant
Documentation” means (i) the letter agreement Re: Base Issuer Warrant Transaction, dated November 19, 2013,
between Wells Fargo Securities, LLC and Cardtronics, Inc.; (ii) the letter agreement Re: Additional Issuer Warrant Transaction,
dated November 21, 2013, between Wells Fargo Securities, LLC and Cardtronics, Inc.; (iii) the letter agreement
Re: Partial Unwind Agreement with respect to the Convertible Bond Hedge Transaction Confirmations and the Issuer Warrant Confirmations,
dated June 29, 2020, between Wells Fargo Securities, LLC and Cardtronics, Inc.; (iv) the letter agreement Re: Base
Issuer Warrant Transaction, dated November 19, 2013, between Bank of America, N.A. and Cardtronics, Inc.; (v) the
letter agreement Re: Additional Base Issuer Warrant Transaction, dated November 21, 2013, between Bank of America, N.A. and
Cardtronics, Inc.; (vi) the letter agreement Re: Termination Agreement with respect to the Convertible Bond Hedge Transaction
Confirmations and the Issuer Warrant Confirmations, dated June 29, 2020, between Bank of America, N.A., Cardtronics plc and
Cardtronics, Inc.; (vii) the letter agreement Re: Base Issuer Warrant Transaction, dated November 19, 2013, between
JPMorgan Chase Bank, National Association and Cardtronics, Inc.; (viii) the letter agreement Re: Additional Base Issuer
Warrant Transaction, dated November 21, 2013, between JPMorgan Chase Bank, National Association and Cardtronics, Inc.;
(ix) the letter agreement Re: Base Issuer Warrant Transaction, dated October 26, 2016, between JPMorgan Chase Bank,
National Association and Cardtronics, Inc.; (x) the letter agreement Re: Additional Issuer Warrant Transaction, dated
October 26, 2016, between JPMorgan Chase Bank, National Association and Cardtronics, Inc.; and (xi) the letter
agreement Re: Partial Unwind Agreement with respect to the Call Option Transaction Confirmations and the Warrants Confirmations,
dated June 29, 2020, between JPMorgan Chase Bank, National Association and Cardtronics, Inc.;
(lll) “Warrants”
means the warrant transactions evidenced by the Warrant Documentation;
and
(mmm) “Willful
Breach” means, with respect to any breaches or failures to perform any of the covenants or other agreements contained
in this Agreement, a material breach that is a consequence of an act or failure to act undertaken by the breaching Party with
actual or constructive knowledge (which shall be deemed to include knowledge of facts that a Person acting reasonably should have,
based on reasonable due inquiry) that such Party’s act or failure to act would, or would reasonably be expected to, result
in or constitute a breach of this Agreement.
Section 9.6 Severability.
Any term or other provision of this Agreement which is invalid, illegal, void or incapable of being enforced in any jurisdiction
shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity, illegality, voidness or unenforceability,
without rendering invalid, illegal, void or unenforceable the remainder of such term or provision or the remaining terms and provisions
of this Agreement in any jurisdiction. If any provision of this Agreement is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision
to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 9.7 Entire
Agreement; Assignment. This Agreement (including the Exhibits hereto and the Company Disclosure Letter and the BidCo
Disclosure Letter) and the Confidentiality Agreement constitute the entire agreement among the Parties with respect to the subject
matter hereof and supersede and cancel all contemporaneous and prior agreements and undertakings, both written and oral, among
the Parties, or any of them, with respect to the subject matter hereof and thereof. This Agreement shall not be assigned by operation
of Law or otherwise without the prior written consent of each of the other Parties, and any assignment without such consent shall
be null and void; provided, that BidCo (or one (1) or more of its Affiliates) shall have the right, without the prior
written consent of the Company, to assign all or any portion of its rights, interests and obligations under this Agreement, from
and after Effective Date, to any of its respective Affiliates or any Debt Financing Source Related Parties pursuant to terms of
the Debt Financing for purposes of creating a security interest herein or otherwise assigning collateral in respect of the Debt
Financing, and any such Debt Financing Source Related Party may exercise all of the rights and remedies of BidCo (or its Affiliate,
as applicable) hereunder in connection with the enforcement of any security or exercise of any remedies to the extent permitted
under the Debt Financing documentation; provided, further, that BidCo shall have the right, without the prior written
consent of the Company, to assign all or any portion of its rights, interests and obligations hereunder to one (1) or more
affiliates of Apollo Management IX, L.P, but no such assignment shall relieve BidCo of any of its obligations hereunder.
Section 9.8 Parties
in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of
any nature whatsoever under or by reason of this Agreement, other than (a) at and after the Effective Date, with respect
to the provisions of Section 6.11, which shall inure to the benefit of the Persons or entities benefiting therefrom
who are intended to be third party beneficiaries thereof, (b) at and after the Effective Date, the rights of the holders
of Company Shares to receive the Consideration to which they became entitled to receive in accordance with the terms and conditions
of this Agreement, (c) at and after the Effective Date, the rights of the holders of Options, Company RSUs and Company PSUs
to receive the payments contemplated by the applicable provisions of Section 2.2, in each case, on the Effective Date
in accordance with the terms and conditions of this Agreement, (d) each BidCo Related Party shall be a third party beneficiary
of Section 8.2, this Section 9.8, Section 9.17 and the definition of BidCo Related Party and
(e) each Debt Financing Source Related Party under the Debt Financing shall be a third party beneficiary of Section 8.2,
Section 9.2, Section 9.3, Section 9.7, this Section 9.8, Section 9.9,
Section 9.12, Section 9.13, Section 9.14 and Section 9.17 (and any provision of
this Agreement to the extent a modification, supplement, amendment or waiver of such provision would modify the substance of any
of the foregoing provisions) (it being understood that the foregoing provisions may not be amended or waived in a manner adverse
to the Debt Financing Source Related Parties without their prior written consent). The representations and warranties in this
Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such
representations and warranties are subject to waiver by the Parties in accordance with Section 9.3 without notice
or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation
among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Consequently,
Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of
actual facts or circumstances as of the date of this Agreement or as of any other date.
Section 9.9 Governing
Law. All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement
shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any 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; provided, that Section 1.1, Section 6.3
(solely to the extent relating to the Circular), Section 6.11 and Section 7.1(a) shall each be
governed and construed in accordance with the Laws of England and Wales; provided, however, that in any Action brought
against any of the Debt Financing Source Related Parties, the foregoing shall be governed by, and construed in accordance with,
the Laws of the State of New York.
Section 9.10 Headings.
The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 9.11 Counterparts.
This Agreement may be executed (including by facsimile transmission, “.pdf” or other electronic transmission) in one
(1) or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed
to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when
one (1) or more counterparts have been signed by each of the Parties and delivered (including by facsimile transmission,
“.pdf” or other electronic transmission) to the other Parties.
Section 9.12 Specific
Performance. The Parties agree that irreparable damage for which monetary damages, even if available, may not be an
adequate remedy, would occur in the event that the Parties do not perform the provisions of this Agreement in accordance with
its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that, subject in all respects to this
Section 9.12, the Parties shall be entitled to seek an injunction, specific performance and other equitable relief
to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without any requirement for
the posting of security, this being in addition to any other remedy to which they are entitled at Law or in equity, subject to
the terms and provisions of this Agreement. Notwithstanding the foregoing or anything in any Transaction Document or otherwise
to the contrary, and subject in all respects to this Section 9.12, in no event shall the Company or any Affiliate
or Company Shareholder thereof (or any of the foregoing’s respective Representatives) be entitled to enforce or seek to
enforce specifically BidCo’s obligation to cause all or any portion of the Equity Financing to be funded (whether under
this Agreement or the Equity Commitment Letter) or otherwise cause BidCo to take action to consummate the Acquisition, the Financings
or the other transactions contemplated hereunder or any other Transaction Document or otherwise (including the obligation to pay
all or any portion of the aggregate Consideration) unless and only if: (a) all of the conditions set forth in Section 7.1
and Section 7.2 have been satisfied or waived (other than the condition set forth in Section 7.1(a)(iii) and
any other condition capable of satisfaction only at the Court Hearing, but subject to the fulfillment or waiver of those conditions
on the date of the Court Hearing), (b) the Debt Financing (or Alternative Financing in accordance with Section 6.13(b))
has been received by BidCo in full, or such full amount will be funded to BidCo on the Effective Date if the Equity Financing
is funded in full on the Effective Date (provided, that BidCo shall not be required to draw down the Equity Financing or
consummate the Acquisition if the Debt Financing is not in fact funded in full on the Effective Date), (c) the Company has
irrevocably and unconditionally confirmed in writing to BidCo that (i) all of the conditions set forth in Section 7.3
have been satisfied (other than the condition set forth in Section 7.1(a)(iii) and any other condition capable
of satisfaction only at the Court Hearing, but subject to the fulfillment or waiver of those conditions on the date of the Court
Hearing) or that it will irrevocably and unconditionally waive any unsatisfied condition in Section 7.3, (ii) if
specific performance is granted and the Equity Financing and Debt Financing (or Alternative Financing in accordance with Section 6.13(b))
are funded, then the Effective Date will occur substantially simultaneously with the drawdown of the Equity Financing and the
Debt Financing (or Alternative Financing in accordance with Section 6.13(b)) (and the Company has not revoked, withdrawn,
modified or conditioned such confirmation) and (iii) the Company is prepared, willing and able to consummate the Acquisition
and the other transactions contemplated hereunder and (d) BidCo fails to complete the Acquisition within three (3) Business
Days after delivery of the Company’s irrevocable and unconditional written confirmation. Each of the Parties agrees that
it will not oppose the granting of an injunction, specific performance and other equitable relief to the extent in compliance
with this Section 9.12 on the basis that (x) either Party has an adequate remedy at Law or (y) an award
of specific performance is not an appropriate remedy for any reason at Law or equity. Any Party seeking an order or injunction
to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required
to provide any bond or other security in connection with any such order or injunction. Notwithstanding anything else to the contrary
in any Transaction Document or otherwise, for the avoidance of doubt, while the Company may, subject in all respects to Section 8.2,
this Section 9.12 and Section 9.17 (including, in each case, the limitations set forth therein) concurrently
seek (i) specific performance or other equitable relief, subject in all respects to this Section 9.12 and (ii) payment
of the BidCo Termination Fee, if, as and when required pursuant to Section 8.2(b)(iv), under no circumstances shall
the Company, directly or indirectly, be permitted or entitled to receive (1) both a grant of specific performance to cause
the Equity Financing to be funded (whether under this Agreement or the Equity Commitment Letter) or other equitable relief, on
the one hand, and payment of any monetary damages whatsoever and/or the payment of all or any portion of the BidCo Termination
Fee, on the other hand, or (2) both payment of any monetary damages, whatsoever, on the one hand, and payment of the BidCo
Termination Fee, on the other hand.
Section 9.13 Jurisdiction.
Each of the Parties irrevocably (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery,
or in the event (but only in the event) that the Delaware Court of Chancery does not have subject matter jurisdiction over such
legal action or proceeding, the United States District Court for the District of Delaware or, in the event (but only in the event)
that such United States District Court for the District of Delaware also does not have subject matter jurisdiction over such legal
action or proceeding, any Delaware state court sitting in New Castle County, in connection with any matter based upon or arising
out of this Agreement or any of the transactions contemplated by this Agreement or the actions of BidCo or the Company in the
negotiation, administration, performance and enforcement hereof and thereof, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) 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 courts of the State of Delaware, as described above, and (d) consents to service being made through the notice procedures
set forth in Section 9.4. Each of the Company and BidCo hereby agrees that service of any process, summons, notice
or document by U.S. registered mail to the respective addresses set forth in Section 9.4 shall be effective service
of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby. Each Party hereto
hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement, 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 process in accordance with this Section 9.13, 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, to the fullest extent permitted by applicable Law, that the suit, action or proceeding in any such court is brought in an
inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Agreement, or the subject matter
hereof or thereof, may not be enforced in or by such courts and further irrevocably waives, to the fullest extent permitted by
applicable Law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any amount
to which the Party is entitled pursuant to the final judgment of any court having jurisdiction. Each Party expressly acknowledges
that the foregoing waiver is intended to be irrevocable under the Laws of the State of Delaware and of the U.S.; provided,
that each such Party’s consent to jurisdiction and service contained in this Section 9.13 is solely for the
purpose referred to in this Section 9.13 and shall not be deemed to be a general submission to said courts or in the
State of Delaware other than for such purpose. Notwithstanding anything in this Agreement to the contrary, each Party hereby irrevocably
and unconditionally agrees that it will not bring or support any litigation against any Debt Financing Source Related Party under
the Debt Financing in any way relating to this Agreement or any of the transactions contemplated hereby, including any dispute
arising out of or relating in any way to the Debt Financing (including the Debt Commitment Letter) or the performance thereof,
in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive
jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate
courts thereof), and that the provisions of Section 9.14 relating to the waiver of jury trial shall apply to any such
action, suit or proceeding.
Section 9.14 WAIVER
OF JURY TRIAL. EACH OF BIDCO AND THE COMPANY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY SUCH ACTION INVOLVING ANY DEBT FINANCING SOURCE RELATED PARTY UNDER THE DEBT FINANCING)
OR THE ACTIONS OF BidCo OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT HEREOF OR THEREOF.
Section 9.15 Transfer
Taxes. All transfer, documentary, sales, use, stamp, registration and other similar Taxes and fees (including penalties
and interest) incurred in connection with the Acquisition shall be paid by or on behalf of BidCo when due and payable.
Section 9.16 Interpretation.
When reference is made in this Agreement to an Article, Exhibit or Section, such reference shall be to an Article, Exhibit or
Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” and
“including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
The words “hereof,” “herein,” “hereby” 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. 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. Words of any gender include each other gender and neuter genders, and words
using the singular or plural number also include the plural or singular number, respectively. Any Contract or Law defined or referred
to herein means such Contract or Law as from time to time amended, modified or supplemented, including (in the case of Contracts)
by waiver or consent and (in the case of Laws) by succession or comparable successor statutes and references to all attachments
thereto and instruments incorporated therein. The word “or” shall not be exclusive. The word “will” shall
be construed to have the same meaning as the word “shall”. Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are specified. The word “to the extent” shall mean the degree
to which a subject or other thing extends, and such phrase shall not mean simply “if”. References to “U.S.”
are to the United States of America, and references to “U.K.” or “UK” are to the United Kingdom. References
to “dollars” or “$” are to U.S. dollars. With respect to the determination of any period of time, “from”
means “from and including.” Any deadline or time period set forth in this Agreement that by its terms ends on a day
that is not a Business Day shall be automatically extended to the next succeeding Business Day. To the extent the Laws governing
any provision of this Agreement are the Laws of England and Wales, references therein to “efforts” shall be construed
to have the same meaning as “endeavors.” Whenever the words “ordinary course of business” are used in
this Agreement, they shall be deemed to be followed by the words “consistent with past practice.” For purposes of
this Agreement, the term “made available,” with respect to any document or item, shall mean that such document or
item has been (i) filed by the Company with the SEC and publicly available on EDGAR at least two (2) Business Days prior
to the execution of this Agreement or (ii) made available to BidCo and its Representatives in the electronic data room maintained
by the Company under the name “Project Catalyst” at https://www.datasite.com on or before two (2) Business
Days immediately prior to the date of this Agreement. Each of the Parties has participated in the drafting and negotiating of
this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if it is
drafted by all the Parties and without regard to any presumption or rule requiring construction or interpretation against
the Party drafting or causing any instrument to be drafted. The Company and BidCo each agree and acknowledge that the individuals
specified in the definition of “knowledge,” as applicable, (x) have read this Agreement, including the representations,
warranties, agreements and covenants contained herein, (y) have reviewed with counsel the representations, warranties and
covenants contained herein and (z) for purposes of Section 8.2(a), shall be deemed to understand the meanings
of the representations, warranties and covenants contained herein.
Section 9.17 Non-Recourse.
Each Party agrees, on behalf of itself and its Affiliates (and, in the case of the Company, its Related Parties), that all Actions,
claims, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted
by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company
veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out
of or by reason of, be connected with, or relate in any manner to: (A) this Agreement, any other Transaction Document or
any other agreement referenced herein or therein or the transactions contemplated hereunder or thereunder (including the Financing),
(B) the negotiation, execution or performance of this Agreement, any other Transaction Document or any other agreement referenced
herein or therein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement,
any other Transaction Document or such other agreement), (C) any breach or violation of this Agreement, any other Transaction
Document or any other agreement referenced herein or therein and (D) any failure of the transactions contemplated hereunder
or under any Transaction Document or any other agreement referenced herein or therein (including the Financing) to be consummated,
in each case, may be made only against (and are those solely of) the Persons that are expressly identified as parties to this
Agreement and in accordance with, and subject to, the terms and conditions hereof. In furtherance and not in limitation of the
foregoing, and notwithstanding anything contained in this Agreement, any other Transaction Document or any other agreement referenced
herein or therein or otherwise to the contrary, each Party hereto covenants, agrees and acknowledges, on behalf of itself and
its respective Affiliates and Related Parties, that no recourse under this Agreement, any other Transaction Document or any other
agreement referenced herein or therein or in connection with any transactions contemplated hereby or thereby (including the Financing)
shall be sought or had against any other Person, including any BidCo Related Party, and no other Person, including any BidCo Related
Party, shall have any liabilities or obligations (whether in Contract or in tort, in Law, in equity or otherwise, or granted by
statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company
veil or any other theory or doctrine, including alter ego or otherwise) for any claims, causes of action, obligations or liabilities
arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (A) through
(D), in each case, except for claims that (1) the Company or BidCo, as applicable, may assert (subject, with respect to the
following clauses (ii) and (iii), in all respects to the limitations set forth in Section 8.2, Section 9.12
and this Section 9.17): (i) against any Person that is party to, and solely pursuant to the terms and conditions
of, the Confidentiality Agreement, (ii) against the Guarantors under, solely if, as and when required pursuant to the terms
and conditions of, the BidCo Guarantee, (iii) against the Guarantors for specific performance of the Guarantors’ obligation
to fund their committed portions of the Equity Financing thereunder solely in accordance with, and pursuant to the terms and conditions
of, Section 6 of the Equity Commitment Letter or (iv) against BidCo solely in accordance with, and pursuant to the terms
and conditions of, this Agreement and (2) BidCo and its Affiliates may assert against the financing sources pursuant to the
terms and conditions of the Debt Commitment Letter, it being expressly agreed and acknowledged that no personal liability or losses
whatsoever shall attach to, be imposed on or otherwise be incurred by any of the aforementioned, as such, arising under, out of,
in connection with or related in any manner to the items in the immediately preceding clauses (A) through (D). Notwithstanding
anything to the contrary herein or otherwise, no BidCo Related Party shall be responsible or liable for any multiple, consequential,
indirect, special, statutory, exemplary or punitive or consequential damages which may be alleged as a result of this Agreement,
the other Transaction Documents or any other agreement referenced herein or therein or the transactions contemplated hereunder
or thereunder (including the Financing), or the termination or abandonment of any of the foregoing.
[Remainder of Page Intentionally
Left Blank]
IN WITNESS WHEREOF,
the Company and BidCo have caused this Agreement to be executed as of the date first written above by their respective officers
thereunto duly authorized.
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COMPANY:
CARDTRONICS PLC
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By:
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/s/ Mark Rossi
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Name: Mark Rossi
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Title: Chairman of the Board of Directors
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BIDCO:
CATALYST HOLDINGS LIMITED
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By:
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/s/ Robert Kalsow-Ramos
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Name: Robert Kalsow-Ramos
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Title: Director
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Signature Page to
Acquisition Agreement
Exhibit 10.1
EXECUTION
VERSION
DEED OF IRREVOCABLE UNDERTAKING
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To:
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Catalyst Holdings Limited (the “Offeror”)
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December 15, 2020
Offer for Cardtronics plc (the “Company”)
I the undersigned understand
that the Offeror is considering the Acquisition substantially on the terms and conditions set out or referred to in the acquisition
agreement between the Offeror and the Company (as amended or modified) (the “Acquisition Agreement”), a copy
of which is annexed hereto.
All references in this undertaking
to the “Acquisition” shall mean the proposed acquisition of the shares in the Company by or on behalf of the Offeror,
which acquisition may be by way of a scheme of arrangement (under Part 26 of the Companies Act 2006) (referred to in this
undertaking as the “Scheme”) and include any revision or variation in the terms of any such acquisition.
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1.
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Warranties and undertakings
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1.1
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With effect from the date on which the Offeror and the Company enter into the Acquisition Agreement, I
irrevocably and unconditionally undertake, represent and warrant to the Offeror that:
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(A)
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I am the sole beneficial owner of (or am otherwise able to control the exercise of all rights attaching
to, including the sole right to vote or to direct the vote of or to dispose of or direct the disposition and the ability to procure
the transfer of), and/or am the registered holder of, the number of ordinary shares of $0.01 each in the capital of the Company
set out in the first column of the table below (the “Shares”, which expression shall include any other shares
in the Company issued after the date hereof and attributable to or derived from such shares);
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(B)
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I have not deposited any of the Shares into a voting trust or entered into a voting agreement or
arrangement with respect to the Shares or granted any proxy or power of attorney with respect thereto that is inconsistent with
this undertaking;
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(C)
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I do not own (beneficially or otherwise), am not the registered holder of, and am not interested
in any shares or other securities of the Company other than those of which details are set out in the table below;
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(D)
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I am able to transfer the Shares free from all liens, equities, charges, encumbrances, options,
rights of pre-emption, and any other third party rights and interests of any nature;
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(E)
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I shall not directly or indirectly, whether by merger, consolidation, division, scheme, operation
of law or otherwise prior to the earlier of the Acquisition becoming effective or the valid termination of the Acquisition Agreement
(in accordance with its terms):
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(i)
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sell, transfer, charge, encumber, grant any option over or otherwise dispose of or permit the sale,
transfer, charging or other disposition or creation or grant of any other encumbrance or option of or over all or any of such Shares
or interest in such Shares except under the Acquisition, or accept or authorize or approve any other offer in respect of all or
any of such Shares; or
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(ii)
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other than pursuant to the Acquisition, enter into any agreement or arrangement or permit any agreement
or arrangement to be entered into or incur any obligation or permit any obligation to arise:
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(a)
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in relation to, or operating by reference to, the Shares; or
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(b)
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to do all or any of the acts referred to in paragraph (i) above; or
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(c)
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which would or would reasonably be expected to restrict or impede the closing of the Acquisition
or otherwise preclude me from complying with my obligations under paragraph 2,
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and references in this paragraph
(E) to any agreement, arrangement or obligation shall include any such agreement, arrangement or obligation whether or not
subject to any conditions or which is to take effect upon or following the Acquisition becoming effective or the valid termination
of the Acquisition Agreement (in accordance with its terms) or upon or following this undertaking ceasing to be binding or upon
or following any other event;
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(F)
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prior to the earlier of the Acquisition becoming effective or the valid termination of the Acquisition
Agreement (in accordance with its terms), I shall not, in my capacity as a shareholder of the Company, without the prior written
consent of the Offeror, convene or requisition, or facilitate or encourage any other party’s effort to convene or requisition,
join in convening or requisitioning, any general or class meeting of the Company for the purposes of voting on any resolution referred
to under paragraphs 2.1(A)(ii) to 2.1(A)(iii) below;
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(G)
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I shall not, in my capacity as a shareholder of the Company, directly or indirectly participate
or engage with, facilitate, solicit or encourage any person other than the Offeror to make any offer for any shares or other securities
of the Company or take any action which is or may be prejudicial to the successful outcome of the Acquisition or which would or
might have the effect of preventing any of the conditions of the Acquisition from being fulfilled;
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(H)
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prior to the earlier of the Acquisition becoming effective or the valid termination of the Acquisition
Agreement (in accordance with its terms) and save for the Shares and the exercise of options under any of the Company’s share
option schemes, I will not acquire any shares or other securities of the Company (or any interest therein) and, if any such
shares, securities or interest (including for these purposes shares arising on exercise of options) is acquired by me, such shares,
securities or interest (as the case may be) shall be deemed to be included in the expression “Shares” for the purposes
of this undertaking and, save for the exercise of any options under any of the Company's share option schemes I shall notify the
Offeror promptly of any such acquisition and of any other dealing, disposal or change in the number of Shares; and
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(I)
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I have full legal capacity, power and authority and the right (free from any legal or other restrictions),
and will at all times continue to have all relevant power and authority and the right, to enter into and perform my obligations
under this undertaking in accordance with their terms.
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2.1
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With effect from the date on which the Offeror and the Company enter into the Acquisition Agreement, I
irrevocably and unconditionally undertake, in my capacity as a shareholder, to the Offeror that:
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(A)
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I shall exercise, or, where applicable, procure the exercise of, all voting rights attaching to
the Shares on any resolution (whether or not amended and whether put on a show of hands or a poll) which is proposed at any general
meeting of the Company (including any adjournment thereof) ("General Meeting") or at any meeting of holders of
shares in the Company convened by a Court (including any adjournment thereof) ("Court Meeting"):
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(i)
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in favour of any resolution necessary to implement the Acquisition;
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(ii)
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against any resolution which might reasonably be expected to impede or frustrate the Acquisition
in any way (which shall include any resolution to approve a scheme of arrangement relating to the acquisition of any shares in
the Company by a third party) or the fulfilment of any condition to the Acquisition; or
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(iii)
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against any resolution to approve a scheme of arrangement relating to the acquisition of any shares
in the Company by a third party.
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only in accordance
with the Offeror’s instructions;
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(B)
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I shall exercise, or, where applicable, procure the exercise of, all rights attaching to the Shares
to requisition or join in the requisitioning of any general meeting of the Company for the purposes of voting on any resolution
referred to under paragraph (A) above, or to require the Company to give notice of any such meeting, only in accordance with
the Offeror’s instructions;
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(C)
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for the purpose of voting on any resolution referred to under paragraph (A) above, I
shall, if required by the Offeror, execute any form of proxy required by the Offeror appointing any person nominated by the Offeror
to attend and vote at the relevant meetings; and
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(D)
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without prejudice to paragraph (C), and in the absence of any such requirement by the Offeror, I
shall after the posting of the circular to be sent to shareholders of the Company containing an explanatory statement in respect
of the Scheme (the “Scheme Document”) (and without prejudice to any right I have to attend and vote in person
at the Court Meeting and the General Meeting to implement the Acquisition), return, or procure the return of, if applicable, the
signed forms of proxy enclosed with the Scheme Document (completed and signed and voting in favour of the resolutions to implement
the Acquisition) in accordance with the instructions printed on those forms of proxy and, if applicable, in respect of any Shares
held in uncertificated form, take or procure the taking of any action which may be required by the Company or its nominated representative
in order to make a valid proxy appointment and give valid proxy instructions (voting in favour of the resolutions to implement
the Acquisition), as soon as possible and in any event within seven days after the posting of the Scheme Document.
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3.1
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The obligations and provisions set out in this undertaking apply equally to the persons from whom
I am to procure votes in favour of the resolutions to implement the Acquisition pursuant to paragraph 2.1(A) above and I shall
procure the observance by such persons of the terms hereof as if they were each specifically a party hereto.
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3.2
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Notwithstanding anything else in this undertaking, no obligations and provisions hereof are applicable
to or binding on me acting in my capacity as a director of the Company, no action taken by me in such capacity shall be capable
of being a breach of this undertaking and I shall have no liability under this undertaking in respect of any action or omission
when acting in such capacity.
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3.3
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I consent to the issue of any announcement in connection with the Acquisition incorporating references
to me and to this undertaking. I understand that, if the Acquisition proceeds, particulars of this undertaking will be contained
in the Scheme Document. I undertake to provide you with all such further information in relation to my interest and that of any
person connected with me as you may require in order to comply with other legal or regulatory requirements for inclusion in the
Scheme Document (or any other document required in connection with the Acquisition).
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3.4
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I irrevocably and by way of security for my obligations hereunder appoint the Offeror and any director
or agent of the Offeror to be my attorney with full power and/or power of substitution to execute on my behalf proxy forms for
any Court Meeting or General Meeting in respect of the Shares other than any Shares which are Excluded Shares (as applicable) for
the duration of this undertaking and to sign, execute and deliver any documents and to do all acts and things as may be necessary
or advisable for the performance of my obligations under this undertaking.
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3.5
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I agree that damages would not be an adequate remedy for breach of this undertaking and, accordingly,
the Offeror shall be entitled to the remedies of specific performance, injunction or other equitable remedies.
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3.6
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This undertaking shall not oblige the Offeror to announce or proceed with the Acquisition. Without
prejudice to any accrued rights, obligations or liabilities, this deed and our obligations, undertakings, representations and warranties
herein shall terminate and cease to have any effect:
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(A)
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on the date on which the Acquisition Agreement is validly terminated (in accordance with its terms);
or
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(B)
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on the date on which a third party offer (whether implemented by way of a scheme or an offer) is
declared wholly unconditional or becomes effective, as applicable.
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3.7
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This undertaking shall be governed by and construed in accordance with English law. Any matter,
claim or dispute, whether contractual or non-contractual, arising out of or in connection with this undertaking is to be governed
by and determined in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
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[Signature Page Follows]
I intend this document to be a deed and execute and deliver
it as a deed.
Executed as a deed by -
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Signature
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in the presence of:
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Signature of witness
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Name of witness
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Address of witness
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Occupation of witness
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[Signature
Page to Director Shareholder Irrevocable Undertaking]
TABLE
1. Number of ordinary shares
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2. Number of ordinary shares under option
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3. Interests in ordinary shares arising from loan stock
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4. *Registered owner
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5. *Beneficial owner
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* Where more than one, indicate number of shares attributable
to each.
Exhibit 10.2
EXECUTION VERSION
DEED OF IRREVOCABLE UNDERTAKING
To: Catalyst
Holdings Limited (the “Offeror”)
December 15, 2020
Offer for Cardtronics plc (the “Company”)
We the undersigned (collectively,
“HEC”) understand that the Offeror is considering the Acquisition.
All references in this undertaking
to the “Acquisition” shall mean the proposed (and any revised or varied) acquisition of all of the shares in the Company
by or on behalf of the Offeror for a price per-share of $35.00 in cash on the terms set out in the acquisition agreement between
the Company and Offeror dated as of the date hereof (as it may be amended in accordance with its terms, the "Acquisition
Agreement"), which acquisition shall be implemented by way of a scheme of arrangement (under Part 26 of the Companies
Act 2006) (referred to in this undertaking as the “Scheme”) or a takeover offer (within the meaning of section
974 of the Companies Act 2006) (referred to in this undertaking as the “Offer”).
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1.
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Warranties and undertakings
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1.1
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With effect from the date on which the Offeror and the Company enter into the Acquisition Agreement,
we irrevocably and unconditionally undertake, represent and warrant to the Offeror that:
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(A)
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Each of us is the sole beneficial owner of (and is otherwise able to control the exercise of all
rights attaching to, including the sole right to vote or to direct the vote of or to dispose of or direct the disposition of and
the ability to procure the transfer of), and/or are the registered holder of, the number of ordinary shares of $0.01 each in the
capital of the Company set out in the table below (the “Shares”, which expression shall include any other shares
in the Company issued after the date hereof and attributable to or derived from such shares);
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(B)
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we have not deposited any of the Shares into a voting trust or entered into a voting agreement
or arrangement with respect to the Shares or granted any proxy or power of attorney with respect thereto that is inconsistent with
this undertaking;
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(C)
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we do not own (beneficially or otherwise), are not the registered holder of, and are not interested
in any shares or other securities of the Company other than those of which details are set out in the table below;
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(D)
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we are able to transfer the Shares free from all liens, equities, charges, encumbrances, options,
rights of pre-emption, and any other third party rights and interests of any nature;
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(E)
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we shall not, directly or indirectly, whether by merger, consolidation, division, scheme or otherwise:
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(i)
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sell, transfer, charge, encumber, grant any option over or otherwise dispose of or permit the sale,
transfer, charging or other disposition or creation or grant of any other encumbrance or option of or over all or any of such Shares
or interest in such Shares except under the Acquisition or to any of our affiliates (provided that such affiliates are bound to
the same extent as us hereunder in respect of such Shares), or accept or authorize or approve any other offer in respect of all
or any of such Shares; or
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(ii)
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other than pursuant to the Acquisition, enter into any agreement or arrangement or procure any
agreement or arrangement to be entered into or incur any obligation:
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(a)
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in relation to, or operating by reference to, the Shares;
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(b)
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to do all or any of the acts referred to in paragraph (i) above; or
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(c)
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which would or would reasonably be expected to restrict or impede the closing of the Acquisition
or otherwise preclude us from complying with our obligations under paragraphs 2 and 3,
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and references in this paragraph
(E) to any agreement, arrangement or obligation shall include any such agreement, arrangement or obligation whether or not
subject to any conditions or which is to take effect upon or following the Acquisition becoming effective (or, if applicable, closing)
or the valid termination of the Acquisition Agreement (in accordance with its terms) or upon or following this undertaking ceasing
to be binding or upon or following any other event.
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(F)
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we shall not without the prior written consent of the Offeror, convene or requisition or join in
convening or requisitioning, any general or class meeting of the Company;
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(G)
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save for the Shares, we will not acquire any shares or other securities of the Company (or any
interest therein) and, if any such shares, securities or interest is acquired by us, such shares, securities or interest (as the
case may be) shall be deemed to be included in the expression “Shares” for the purposes of this undertaking; and
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(H)
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we have full legal capacity, power and authority and the right (free from any legal or other restrictions),
and will at all times continue to have all relevant power and authority and the right, to enter into and perform our obligations
under this undertaking in accordance with their terms. Our execution, delivery and performance of this undertaking has been duly
authorized under our governing documents and applicable law and will not breach or violate our governing documents, breach or violate
the terms or provisions of, or constitute a default under, any indenture or other agreement or instrument by which any of us or
the Shares are bound or conflict with or violate any provision of any law, rule, regulation, order, judgment or decree binding
upon us or by which any of the Shares are bound.
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2.1
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With effect from the date on which the Offeror and the Company enter into the Acquisition Agreement,
we irrevocably and unconditionally undertake, if the Acquisition is implemented by way of the Scheme, to the Offeror that:
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(A)
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we shall exercise, or, where applicable, procure the exercise of, all voting rights attaching to
the Shares on any resolution (whether or not amended and whether put on a show of hands or a poll) which is proposed at any general
meeting of the Company (including any adjournment thereof) ("General Meeting") or at any meeting of holders of
shares in the Company convened by a Court (including any adjournment thereof) (“Court Meeting”) as follows:
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(i)
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in favour of any resolution necessary to implement the Acquisition;
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(ii)
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other than with the Offeror’s prior consent, against any resolution that might reasonably
be expected to impede, prevent, delay or frustrate in any way the Acquisition or the fulfilment of any condition to the Acquisition;
and
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(iii)
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against any resolution to approve a scheme of arrangement relating to the acquisition of any shares
in the Company by a third party;
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(B)
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we shall exercise, or, where applicable, procure the exercise of, all rights attaching to the Shares
to requisition or join in the requisitioning of any general meeting of the Company for the purposes of voting on any resolution
referred to under paragraph (A) above, or to require the Company to give notice of any such meeting, only in accordance with
the Offeror’s instructions;
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(C)
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for the purpose of voting on any resolution referred to under and in accordance with paragraph
(A) above, we shall, if required by the Offeror, execute a form of proxy appointing any person nominated by the Offeror to
attend and vote at the relevant meetings for such purpose; and
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(D)
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without prejudice to paragraph (C), and in the absence of any such requirement by the Offeror,
we shall after the posting of the circular to be sent to shareholders of the Company containing an explanatory statement in respect
of the Scheme (the “Scheme Document”) (and without prejudice to any right we have to attend and vote in person
at the Court Meeting and the General Meeting to implement the Acquisition), return, or procure the return of, if applicable, the
signed forms of proxy enclosed with the Scheme Document (completed and signed and voting in favour of the resolutions to implement
the Acquisition) in accordance with the instructions printed on those forms of proxy and, if applicable, in respect of any Shares
held in uncertificated form, take or procure the taking of any action which may be required by the Company or its nominated representative
in order to make a valid proxy appointment and give valid proxy instructions (voting in favour of the resolutions to implement
the Acquisition), as soon as possible and in any event within seven days after the posting of the Scheme Document.
|
|
3.1
|
With immediate effect, we irrevocably and unconditionally undertake, if the Acquisition is implemented
by way of the Offer, to the Offeror that:
|
|
(A)
|
we shall as soon as possible and in any event within seven days after the posting of the formal
document containing the Offer (the “Offer Document”) (or, in respect of any shares allotted to us after the
posting of the Offer Document, within seven days of such allotment or acquisition) duly accept or procure acceptance of the Offer
in accordance with its terms in respect of the Shares other than Shares that are Excluded Shares under the acquisition agreement
and, in respect of such Shares held in certificated form, shall forward the relevant share certificate(s) to the Offeror or
its nominated representative (or a form of indemnity acceptable to the directors of the Company in respect of any lost certificate(s))
at the time of acceptance and, in respect of any such Shares held in uncertificated form, shall take any action which may be required
by the Offeror or its nominated representative;
|
|
(B)
|
notwithstanding that the terms of the Offer Document will confer rights of withdrawal on accepting
shareholders, we shall not withdraw any acceptance of the Offer in respect of the Shares or any of them and shall procure that
no rights to withdraw any acceptance in respect of such Shares are exercised;
|
|
4.1
|
The obligations and provisions set out in this undertaking apply equally to the persons from whom
we are to procure votes in favour of the resolutions to implement the Acquisition pursuant to paragraph 2.1(A) above or acceptance
of the Offer pursuant to the terms of paragraph 3.1(A) above (as the case may be) and we shall procure the observance by such
persons of the terms hereof as if they were each specifically a party hereto. Notwithstanding anything else in this undertaking,
no obligations and provisions hereof are applicable to or binding on Mr Douglas Braunstein acting in his capacity as director of
the Company, no action taken by Mr Braunstein in such capacity shall be capable of being a breach of this undertaking and we shall
have no liability under this undertaking in respect of any action or omission of Mr Braunstein acting in such capacity.
|
|
4.2
|
We consent to the issue of any announcement in connection with the Acquisition incorporating references
to us and to this undertaking. We understand that, if the Acquisition proceeds, particulars of this undertaking will be contained
in the Scheme Document or the Offer Document (as the case may be). We undertake to provide you with all such further information
in relation to our interest and that of any person connected with us as you may require in order to comply with other legal or
regulatory requirements for inclusion in the Scheme Document or the Offer Document (as the case may be) (or any other document
required in connection with the Acquisition).
|
|
4.3
|
We irrevocably and by way of security for our obligations hereunder appoint the Offeror, and any
director or agent of the Offeror to be our attorney with full power and/or power of substitution to execute on our behalf proxy
forms for any Court Meeting or General Meeting called to approve the Scheme or forms of acceptance to be issued with the Offer
Document in respect of the Shares other than any Shares which are Excluded Shares (as applicable) for the duration of this undertaking
if and only if we fail to comply with any of our undertakings in paragraphs 2 or 3 hereof and to sign, execute and deliver any
incidental documents necessary for the foregoing.
|
|
4.4
|
We agree that damages would not be an adequate remedy for breach of this undertaking and, accordingly,
the Offeror shall be entitled to the remedies of specific performance, injunction or other equitable remedies.
|
|
4.5
|
This undertaking shall not oblige the Offeror to announce or proceed with the Acquisition. Without
prejudice to any accrued rights, obligations or liabilities, this deed and our obligations, undertakings, representations and warranties
herein shall terminate and cease to have any effect:
|
|
(A)
|
if the Offeror delivers written notice to HEC that Offeror does not intend to proceed with the
Acquisition;
|
|
(B)
|
a third party offer (whether implemented by way of a scheme or an offer) is declared wholly unconditional
or becomes effective, as applicable; or
|
|
(C)
|
on the date on which the Acquisition Agreement is validly terminated in accordance with its terms.
|
|
4.6
|
This undertaking shall be governed by and construed in accordance with English law. Any matter,
claim or dispute, whether contractual or non-contractual, arising out of or in connection with this undertaking is to be governed
by and determined in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
|
We intend this document to be a deed and execute and deliver
it as a deed.
|
Hudson Executive Capital LP
By: HEC Management GP LLC, its General Partner
|
|
|
Executed as a deed by -
|
|
|
/s/ Douglas Braunstein
|
|
Signature
|
|
|
in the presence of:
|
Douglas Braunstein
|
|
Managing Member
|
|
|
Signature of witness
|
/s/ Michael D. Pinnisi
|
|
|
|
|
Name of witness
|
Michael D. Pinnisi
|
|
|
|
|
Address of witness
|
570 Lexington Avenue, 35th Floor
New York, NY 10022
|
|
|
|
|
Occupation of witness
|
Chief Operating Officer, Hudson Executive Capital LP
|
We intend this document to be a deed and execute and deliver
it as a deed.
|
HEC Master Fund LP
By: HEC Performance GP LLC, its General Partner
By: HEC Management GP LLC, its Managing Member
|
|
|
Executed as a deed by -
|
|
|
/s/ Douglas Braunstein
|
|
Signature
|
|
|
in the presence of:
|
Douglas Braunstein
|
|
Managing Member
|
|
|
Signature of witness
|
/s/ Michael D. Pinnisi
|
|
|
|
|
Name of witness
|
Michael D. Pinnisi
|
|
|
|
|
Address of witness
|
570 Lexington Avenue, 35th Floor
New York, NY 10022
|
|
|
|
|
Occupation of witness
|
Chief Operating Officer, Hudson Executive Capital LP
|
We intend this document to be a deed and execute and deliver
it as a deed.
|
HEC SPV I LP
By: HEC SPV I GP LLC, its General Partner
By: HEC Management GP LLC, its Managing Member
|
|
|
Executed as a deed by -
|
|
|
/s/ Douglas Braunstein
|
|
Signature
|
|
|
in the presence of:
|
Douglas Braunstein
|
|
Managing Member
|
|
|
Signature of witness
|
/s/ Michael D. Pinnisi
|
|
|
|
|
Name of witness
|
Michael D. Pinnisi
|
|
|
|
|
Address of witness
|
570 Lexington Avenue, 35th Floor
New York, NY 10022
|
|
|
|
|
Occupation of witness
|
Chief Operating Officer, Hudson Executive Capital LP
|
TABLE
*Registered holder(s)
|
HEC Master Fund LP (2, 463, 602), HEC SPV I LP (6,181,278)
|
*Beneficial owner(s)
|
Hudson Executive Capital LP (8,644,880), HEC Management GP LLC (8,644,880), and Douglas Braunstein (8,644,880)
|
Total number of shares
|
8,644,880
|
*Where more than one, indicate number
of shares attributable to each
Exhibit 10.3
EXECUTION
VERSION
LIMITED GUARANTEE
This LIMITED GUARANTEE,
dated as of December 15, 2020 (as may be amended, restated, supplemented or otherwise modified, this “Limited Guarantee”),
by each of the parties listed on Exhibit A hereto (each, a “Guarantor” and collectively, the “Guarantors”),
is made in favor of Cardtronics plc, a public limited company incorporated in England and Wales (registered no. 10057418) (the
“Guaranteed Party”). Reference is hereby made to that certain Acquisition Agreement, dated as of the date hereof
(as may be amended, restated, supplemented or otherwise modified, the “Acquisition Agreement”), by and between
the Guaranteed Party and Catalyst Holdings Limited, a private limited company incorporated in England and Wales (registered no.
13078098) (“BidCo”). Except as otherwise specified herein, each capitalized term used in this Limited Guarantee
and not defined herein shall have the meaning ascribed to such term in the Acquisition Agreement.
1. Limited
Guarantee.
(a) As
consideration for the Guaranteed Party entering into the Acquisition Agreement, each Guarantor hereby guarantees, severally and
not jointly, to the Guaranteed Party, on the terms and subject to the conditions set forth herein, the due and punctual payment
and performance of each of (but never more than any one of) a portion of BidCo’s obligation following the valid termination
of the Acquisition Agreement to pay to the Guaranteed Party (i) (x) the BidCo Termination Fee, if, when, and as due,
pursuant to Section 8.2(b)(iv) of the Acquisition Agreement, and (y) the amounts, if, when, and as due, pursuant
to Section 8.2(d) of the Acquisition Agreement (subject in all circumstances to a maximum aggregate amount of $500,000,
the “Enforcement Expenses Obligation”) or (ii) all amounts payable (and solely to the extent payable pursuant
to a final and non-appealable order of a court of competent jurisdiction) as damages (solely to the extent proven) as a result
of fraud by BidCo on or before the Effective Date under and in accordance with the terms of the Acquisition Agreement (subject
in all circumstances to a cap in the amount of the BidCo Termination Fee, the “Damages Obligation”) (the BidCo
Termination Fee, the Enforcement Expenses Obligation or the Damages Obligation, as applicable, the “Guaranteed Obligation”),
in each case, on the terms and subject to the conditions set forth in, the Acquisition Agreement (and subject in all respects to
the Maximum Liability Amount set forth therein) and this Limited Guarantee, in an amount equal to the percentage of the Maximum
Aggregate Amount (as defined below) set forth opposite such Guarantor’s name on Exhibit A hereto with respect
to either the BidCo Termination Fee (and, if applicable, the Enforcement Expenses Obligation) or the Damages Obligation, as applicable
(such amount with respect to each Guarantor is such Guarantor’s “Maximum Guarantor Amount” and such percentage
set forth opposite such Guarantor’s name on Exhibit A hereto with respect to either the BidCo Termination Fee
(and, if applicable, the Enforcement Expenses Obligation) or the Damages Obligation, as applicable, such Guarantor’s “Pro
Rata Percentage”); provided, that the maximum aggregate liability of each Guarantor hereunder shall not exceed
such Guarantor’s Maximum Guarantor Amount and the maximum aggregate liability of the Guarantors hereunder shall not exceed
$93,800,00 (such amount referred to herein as the “Maximum Aggregate Amount”). Notwithstanding anything herein
to the contrary, the Guaranteed Party agrees and acknowledges, on behalf of itself and its Related Persons (as defined below),
that (i) this Limited Guarantee may not be enforced without giving full and absolute effect to the provisions of this Limited
Guarantee limiting the Guarantors’ liability to the Maximum Aggregate Amount and limiting each Guarantor’s liability
to such Guarantor’s Maximum Guarantor Amount and (ii) the Guaranteed Party acknowledges and agrees that it will not,
directly or indirectly, seek to enforce this Limited Guarantee in violation thereof. The Guaranteed Party hereby, on behalf of
itself and its Related Persons, agrees and acknowledges that (A) the Guarantors shall in no event be required to pay to any
Person or Persons in the aggregate more than the Maximum Aggregate Amount (and that no Guarantor shall be required to pay to any
Person or Persons in the aggregate more than such Guarantor’s Maximum Guarantor Amount) under, in respect of, or in connection
with, this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other
document or instrument delivered in connection herewith or therewith, or the transactions contemplated hereby or thereby (or the
termination or abandonment thereof) or otherwise, and (B) no Guarantor shall have any liability or obligation to any Person
under this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other
document or instrument delivered in connection herewith or therewith, or the transactions contemplated hereby or thereby (or the
termination or abandonment thereof) or otherwise, other than as expressly set forth herein and solely to the extent thereof. In
addition, the Guaranteed Party hereby, on behalf of itself and its Related Persons, agrees and acknowledges that (a) no Guarantor
shall be required to pay (x) more than such Guarantor’s Pro Rata Percentage of the Maximum Aggregate Amount or (y) any
amounts required to be paid by any other Guarantor hereunder and (b) no demand by the Guaranteed Party shall be made, directly
or indirectly, on any Guarantor unless demand is also made on each other Guarantor in accordance with their respective Pro Rata
Percentages of the Guaranteed Obligation in accordance with the terms and conditions set forth herein. Notwithstanding anything
to the contrary contained in this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction
Document or any other document or instrument delivered in connection herewith or therewith or otherwise, the Guaranteed Party hereby
agrees, on behalf of itself and its Related Persons, that to the extent BidCo is relieved of all or any portion of its payment
or performance obligations under the Acquisition Agreement, by satisfaction or waiver thereof or pursuant to any other agreement
with the Guaranteed Party, the Guarantors shall be similarly relieved, to such extent, of their respective obligations under this
Limited Guarantee.
2. Terms
of Limited Guarantee; Recovery Claim.
(a) This
Limited Guarantee is a primary and original obligation of the Guarantors and is a guarantee of payment and performance (subject
to this Limited Guarantee’s terms and conditions and the terms and conditions of the Acquisition Agreement) and not of collection,
and the obligations of the Guarantors hereunder shall transfer, automatically and without any further action by the Guarantors
or BidCo, to any assignee of BidCo’s obligations under the Acquisition Agreement. Subject in all respects to Section 1
of this Limited Guarantee, a separate Proceeding may be brought and prosecuted against the Guarantors to enforce this Limited Guarantee
up to an amount equal to such Guarantor’s Maximum Guarantor Amount. Notwithstanding anything herein to the contrary, the
Guaranteed Party agrees and acknowledges, on behalf of itself and its Related Persons, that each Guarantor may assert, as a defense
to, or release or discharge of, any payment or performance by such Guarantor hereunder, any claim, set-off, deduction, defense
or release that BidCo or the Guarantors could assert against the Guaranteed Party under the terms of, or with respect to, the Acquisition
Agreement, or otherwise with respect to the Guaranteed Obligation.
(b) The
Guarantors agree and acknowledge that their respective obligations hereunder shall not be released or discharged in whole or in
part, or otherwise affected by:
(i) any
change in the corporate existence, structure or ownership of BidCo or any Guarantor or any insolvency, bankruptcy, reorganization
or other similar proceeding of BidCo or any Guarantor or any of their Related Persons or affecting any of their respective assets;
(ii) any
change in the manner, place or terms of payment or performance, or any change or extension of the time of payment or performance
of, renewal or alteration of, the Guaranteed Obligation, any liability or obligation incurred directly or indirectly in respect
thereof, or any amendment or waiver in accordance with the terms and conditions of the Acquisition Agreement or the documents entered
into in connection therewith, in each case, made in accordance with the terms thereof;
(iii) the
existence of any claim, set-off or other right that the Guarantors may have at any time against BidCo or any of its Related Persons,
whether in connection with the Guaranteed Obligation or otherwise;
(iv) the
right by statute or otherwise to require the Guaranteed Party to institute suit against BidCo or any of its Related Persons or
to exhaust any rights and remedies which the Guaranteed Party has or may have against BidCo or any of its Related Persons; or
(v) the
failure or delay on the part of the Guaranteed Party to assert any claim or demand or to pursue or enforce any right, or remedy,
it may have against BidCo or any Guarantor.
Notwithstanding the foregoing or anything
to the contrary in this Limited Guarantee, the Guarantors shall be immediately fully released and discharged hereunder without
the need for any further action by any Person if the Guaranteed Obligation is paid by BidCo or any other Person.
(c) The
Guarantors hereby expressly waive any and all rights or defenses arising by reason of any Law which would otherwise require any
election of remedies by the Guaranteed Party. The Guarantors waive promptness, diligence, notice of acceptance of this Limited
Guarantee and of the Guaranteed Obligation, presentment, demand for payment, notice of nonperformance, default, dishonor and protest,
notice of the incurrence of any Guaranteed Obligation and all other notices of any kind (except for notices to be provided to BidCo
pursuant to the Acquisition Agreement), all defenses which may be available by virtue of any stay, moratorium Law or other similar
Law now or hereafter in effect, any right to require the marshaling of assets of BidCo or any other Person interested in the transactions
contemplated by the Acquisition Agreement, and all suretyship defenses generally (in each case, other than (i) fraud, gross
negligence, bad faith or willful breach by the Guaranteed Party or any of its Related Persons, (ii) defenses to the payment
of the Guaranteed Obligation that are available to BidCo under the Acquisition Agreement or any other Transaction Document (other
than defense arising from the bankruptcy or insolvency of BidCo), (iii) breach by the Guaranteed Party of this Limited Guarantee
or (iv) payment in full of the Guaranteed Obligation).
(d) The
Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that BidCo becomes
subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect
the Guarantors’ obligations hereunder.
3. Sole
Remedy.
(a) The
Guaranteed Party acknowledges and agrees, on behalf of itself and its Related Persons, that:
(i) the
sole cash asset of BidCo is cash in a de minimis amount, and that no additional funds are expected to be contributed to
BidCo unless and until the Effective Date occurs in accordance with the terms and conditions of the Acquisition Agreement, and
that, without limiting the rights of the Guaranteed Party under this Limited Guarantee, and subject to all of the terms, conditions
and limitations herein and therein, the Guaranteed Party shall not have any right to cause any assets to be contributed to BidCo
by the Guarantors, any of the Guarantors’ Related Persons (as defined below) or any other Person;
(ii) notwithstanding
anything that may be expressed or implied in this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any
other Transaction Document or any other document or instrument delivered in connection herewith or therewith or the transactions
contemplated hereby or thereby, the Guarantors shall not have any liability or obligation to any Person relating to, arising out
of or in connection with, this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction
Document or any other document or instrument delivered in connection herewith or therewith or the transactions contemplated hereby
or thereby (or the termination or abandonment thereof), other than as expressly set forth herein or therein, and that no Person
other than the Guarantors shall have any liability or obligation hereunder; and
(iii) notwithstanding
that each Guarantor is a partnership, limited partnership or limited liability company, the Guaranteed Party has no and shall have
no right of remedy, recourse or recovery (whether at Law or equity or in tort, contract or otherwise) against the Guarantors or
any Guarantor’s Related Persons (or any Related Person of such Persons), and no personal liability or obligation whatsoever
shall attach to any Guarantor’s Related Persons (or any Related Person of such Persons) (including, without limitation, any
liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Acquisition Agreement, the Equity
Commitment Letter, any other Transaction Document or any other document or instrument delivered in connection herewith or therewith
or the transactions contemplated hereby or thereby (or the termination or abandonment thereof) or otherwise, or in respect of any
oral representations made or alleged to be made in connection therewith or herewith, including in the event BidCo breaches (whether
willfully, intentionally, unintentionally or otherwise) its obligations under this Limited Guarantee, the Acquisition Agreement,
the Equity Commitment Letter, any other Transaction Document or any other document or instrument delivered in connection herewith
or therewith or otherwise, whether or not any such breach is caused by the Guarantors breach (whether willfully, intentionally,
unintentionally or otherwise) of their obligations under this Limited Guarantee), in each case, whether by or through any Guarantor,
BidCo or any other Person, whether by or through attempted piercing of the corporate, limited liability company or limited partnership
veil or similar action, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute,
regulation or applicable Law, by or through a claim (whether at Law or equity or in tort, contract or otherwise) by or on behalf
of BidCo against the Guarantors or any Related Person of any Guarantor (or any Related Person of such Persons), or otherwise, except
for (and, in each case, solely to the extent of) its rights against the Guarantors expressly provided under this Limited Guarantee
pursuant to the terms and subject to the conditions hereof, and in no event shall the Guaranteed Party or any of its Related Persons
(or any Related Person of such Persons) seek any damages of any kind or any other recovery, judgment, or remedies of any kind (including
any multiple, consequential, indirect, special, statutory, exemplary or punitive damages) in excess of the Maximum Aggregate Amount
against the Guarantors or any Related Person of any Guarantor (or any Related Person of such Persons) pursuant to the terms and
subject to the conditions hereof (or, with respect to each Guarantor, more than the lesser of (x) such Guarantor’s Maximum
Guarantor Amount, if any and (y) such Guarantor’s Pro Rata Percentage of the Maximum Aggregate Amount).
(b) The
recourse against the Guarantors under this Limited Guarantee shall be the sole and exclusive remedy (whether at Law, in equity,
in contract, in tort or otherwise) of the Guaranteed Party and all of its Related Persons against the Guarantors and any Guarantor’s
Related Persons (and any Related Person of such Related Persons), and none of the Guarantors nor any Guarantor’s Related
Persons (nor any Related Person of such Persons) will have any liability or obligation to any Person, in each case, in respect
of any breaches, losses, damages, liabilities or obligations arising under, or in connection with, this Limited Guarantee, the
Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document or instrument delivered
in connection herewith or therewith or the transactions contemplated hereby or thereby (or the termination or abandonment thereof)
or otherwise, including in respect of any oral representations made or alleged to be made in connection herewith or therewith.
The Guaranteed Party hereby unconditionally and irrevocably covenants and agrees that it shall not institute, directly or indirectly,
and shall cause its Related Persons (and any Related Person of such Persons) not to institute, directly or indirectly, any proceeding
or bring any other claim (whether at Law, in equity, in contract, in tort or otherwise) arising under, or in connection with, this
Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document
or instrument delivered in connection herewith or therewith or the transactions contemplated hereby or thereby (or the termination
or abandonment thereof) or otherwise, or in respect of any oral representations made or alleged to be made in connection herewith
or therewith, against any Guarantor or any Guarantor’s Related Person (or any Related Person of such Persons), except for
claims of the Guaranteed Party against the Guarantors solely pursuant to the terms and subject to the conditions of this Limited
Guarantee. As used in this Limited Guarantee, the term “Related Person” shall mean, with respect to any Person,
any former, current or future direct or indirect equity holder, controlling person, general or limited partner, officer, director,
employee, investment professional, manager, stockholder, member, agent, affiliate, assignee, representative or financing source
of any of the foregoing; provided, that the definition of “Related Person” shall exclude the undersigned in
respect of its express obligations hereunder and BidCo in respect of its express obligations under the Acquisition Agreement.
(c) The
Guaranteed Party further unconditionally and irrevocably covenants and agrees that, notwithstanding anything contained herein or
otherwise, the Guaranteed Party has no right to recover, and shall not recover, and the Guaranteed Party shall not institute, directly
or indirectly, and shall cause its Related Persons (and any Related Person of such Persons) not to institute, directly or indirectly,
any Proceeding or bring any other claim in the name of or on behalf of the Guaranteed Party to recover more than the Maximum Aggregate
Amount in respect of any breaches, losses, damages, liabilities or obligations arising under, or in connection with, this Limited
Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document or instrument
delivered in connection herewith or therewith or the transactions contemplated hereby or thereby (or the termination or abandonment
thereof) or otherwise, and the Guaranteed Party shall promptly return all monies paid to it or its Related Persons in excess of
the Maximum Aggregate Amount or applicable Maximum Guarantor Amount to the applicable Guarantor or Guarantors.
(d) Nothing
set forth in this Limited Guarantee shall confer or give to any Person other than the Guaranteed Party any rights, remedies or
recourse against any Person, including the Guarantors and their Related Persons (and any Related Person of such Persons), except
as expressly set forth herein. The Guaranteed Party acknowledges and agrees, on behalf of itself and its Related Persons, that
each Guarantor is agreeing to enter into this Limited Guarantee in reliance on the provisions set forth in this Section 3.
This Section 3 shall survive the termination of this Limited Guarantee.
4. Representations
and Warranties. Each Guarantor, severally and not jointly, and not jointly and severally, hereby represents and warrants with
respect to itself that:
(a) it
has all the power and authority to execute, deliver and perform this Limited Guarantee;
(b) the
execution, delivery and performance of this Limited Guarantee have been duly and validly authorized and approved by all necessary
action by such Guarantor, and this Limited Guarantee has been duly and validly executed and delivered by such Guarantor;
(c) this
Limited Guarantee constitutes a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar Laws relating to or affecting creditors’ rights generally, or by general principles
of equity); and
(d) such
Guarantor has available funds or unfunded capital commitments in an amount not less than such Guarantor’s Maximum Guarantor
Amount or has such other financial means at its disposal to enable such Guarantor to pay such Guarantor’s Maximum Guarantor
Amount when due pursuant to the terms and subject to the conditions of this Limited Guarantee.
5. Termination.
This Limited Guarantee shall terminate and be of no further force and effect and the Guarantors shall have no further liability
or obligation under this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document
or any other document or instrument delivered in connection herewith or therewith or in respect of the transactions contemplated
hereby or thereby (or the termination or abandonment thereof), as of the earliest to occur of: (i) the Effective Date; (ii) the
payment in full of the Guaranteed Obligation; (iii) the valid termination of the Acquisition Agreement in accordance with
its terms in any circumstances other than pursuant to which BidCo would be required pursuant to the terms and subject to the conditions
of the Acquisition Agreement to make any payment of any Guaranteed Obligation; (iv) the date that is sixty (60) days after
the termination of the Acquisition Agreement if the Acquisition Agreement is terminated in any of the circumstances pursuant to
which BidCo would be required pursuant to the terms and subject to the conditions of the Acquisition Agreement to make a payment
of the Guaranteed Obligation described in Section 1(a) if (A) by such date the Guaranteed Party shall have
made a claim in writing with respect to such Guaranteed Obligation during such sixty (60)-day period and (B) the Guaranteed
Party shall have commenced a Proceeding during such sixty (60)-day period in accordance with Section 15 against the
Guarantors alleging that BidCo is liable for such Guaranteed Obligation, in which case, this Limited Guarantee shall survive solely
with respect to amounts claimed or alleged to be so owing; provided, that with respect to this clause (iv), the Guarantors
shall not have any further liability or obligation under this Limited Guarantee from and after the earlier of (A) the entry
of a final, non-appealable Order of a court of competent jurisdiction and (B) the execution and delivery of a written agreement
between the Guarantors, on the one hand, and the Guaranteed Party, on the other hand, and, in either case, the payment by the Guarantors
to the Guaranteed Party of all amounts payable by the Guarantors pursuant to such Order or agreement; and (v) the termination
of this Limited Guarantee by mutual written agreement of the Guarantors and the Guaranteed Party. Upon any termination of this
Limited Guarantee, no Person shall have any rights or claims (whether at Law, in equity, in contract, in tort or otherwise) against
BidCo, the Guarantors or their respective Related Persons (and any Related Person of such Persons) under this Limited Guarantee,
the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document or instrument delivered
in connection herewith or therewith or in connection with, the transactions contemplated hereby or thereby (or the termination
or abandonment thereof) or otherwise, or in respect of any oral representations made or alleged to be made in connection herewith
or therewith, whether at Law or equity, in contract, in tort or otherwise, and none of BidCo the Guarantors or their respective
Related Persons (or any Related Person of such Persons) shall have any further liability or obligation relating to or arising from
this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document
or instrument delivered in connection herewith or therewith or the transactions contemplated hereby or thereby (or the termination
or abandonment thereof) or otherwise, or in respect of any oral representations made or alleged to be made in connection herewith
or therewith, whether at Law or equity, in contract, in tort or otherwise except that Section 3, this Section 5,
Section 6, Section 7 and Section 9 through and including Section 16 will survive
termination of this Limited Guarantee in accordance with their respective terms and conditions. In the event that the Guaranteed
Party, any Related Person of the Guaranteed Party or any other Person who could be a beneficiary of this Limited Guarantee, or
any other Person who is acting on behalf of, or at the direction of, any of the foregoing, asserts, directly or indirectly, in
any litigation or any other Proceeding (whether at Law, in equity, in contract, in tort or otherwise) (a) that the provisions
of Section 1 hereof limiting the Guarantors’ aggregate liability to the Maximum Aggregate Amount (or, with respect
to each Guarantor, the lesser of (x) such Guarantor’s Maximum Guarantor Amount, if any and (y) such Guarantor’s
Pro Rata Percentage of the Maximum Aggregate Amount) or the provisions of Section 3 hereof or the provisions of this
Section 5 are illegal, invalid or unenforceable, in whole or in part or (b) any theory of liability against any
Guarantor or any of its Related Persons (or any Related Person of such Persons) with respect to the transactions contemplated by
this Limited Guarantee, the Acquisition Agreement, the Equity Commitment Letter, any other Transaction Document or any other document
or instrument delivered in connection herewith or therewith, or any of the transactions contemplated hereby or thereby (or the
termination or abandonment thereof) or otherwise (including, in each case, in respect of any oral representations made or alleged
to be made in connection herewith or therewith) other than, solely with respect to this clause (b), any claim by the Guaranteed
Party against the Guarantors in respect of such Guarantor’s obligation to fund its portion of any Guaranteed Obligation up
to its Maximum Guarantor Amount in accordance with, and solely to the extent permitted by, this Limited Guarantee, then (x) the
obligations of the Guarantors under this Limited Guarantee shall immediately terminate without the need for any further action
by any Person and shall thereupon be null and void ab initio and of no further force and effect, (y) if any Guarantor has
previously made any payments under this Limited Guarantee, such Guarantor shall be entitled to recover such payments from the Guaranteed
Party and (z) none of BidCo, nor the Guarantors nor any of their respective Related Persons (nor any Related Person of such
Persons) shall have any liability or obligation to the Guaranteed Party or any of its Related Persons (or any Related Person of
such Persons) with respect to the transactions contemplated by the Acquisition Agreement, the Equity Commitment Letter, this Limited
Guarantee, any other Transaction Document or any other document or instrument delivered in connection herewith or therewith or
the transactions contemplated hereby or thereby (including in respect of any oral representations made or alleged to be made in
connection therewith), or the termination or abandonment thereof.
6. Entire
Agreement. This Limited Guarantee, together with the Acquisition Agreement and Equity Commitment Letter, constitute the entire
agreement among the parties with respect to the subject matter hereof and thereof and supersede and cancel any and all prior or
contemporaneous discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, express
or implied, among BidCo and the Guarantors or any of their Related Persons (or any Related Person of such Persons), on the one
hand, and the Guaranteed Party or any of its Related Persons (or any Related Person of such Persons), on the other hand regarding
the subject matter hereof. Except as expressly provided in this Limited Guarantee, no representation or warranty has been made
or relied upon by any of the parties to this Limited Guarantee with respect to this Limited Guarantee.
7. Amendments
and Waivers. No amendment or waiver of any provision of this Limited Guarantee will be valid and binding unless it is in writing
and signed, in the case of an amendment, by each of the Guarantors and the Guaranteed Party or, in the case of a waiver, by the
party or each of the parties against whom the waiver is to be effective (with any waiver of any Guarantor being applicable to all
Guarantors). No waiver by any party of any breach or violation of, or default under, this Limited Guarantee, whether intentional
or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence. No delay or omission on the part of any party in exercising any right,
power or remedy under this Limited Guarantee will operate as a waiver thereof.
8. Payments.
All payments to be made hereunder by each Guarantor shall be made in lawful money of the United States of America at the time of
payment, and shall be made in immediately available funds.
9. Counterparts;
Notices.
(a) Counterparts.
This Limited Guarantee agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts
(and may be delivered by facsimile transmission or via email as a portable document format), each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one and the same instrument.
(b) Notices. All
notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given (x) when
delivered personally by hand (with written confirmation of receipt by other than automatic means, whether electronic or otherwise),
(y) when sent by e-mail (with non-automated written confirmation of receipt) or (z) one (1) Business Day following
the day sent by an internationally recognized overnight courier (with written confirmation of receipt), in each case, at the following
addresses or e-mail addresses (or to such other address or e-mail address as a party may have specified by notice given to the
other party pursuant to this provision):
If to any Guarantor, to:
c/o Apollo Management IX, L.P.
9 West 57th Street, 43rd Floor
New York, NY 10019
Attn: Robert Kalsow-Ramos,
Partner
Jim Elworth, Deputy General Counsel
Email:
rkalsow-ramos@apollo.com
jelworth@apollo.com
with a copy (which shall not constitute
actual or constructive notice) to:
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attn: Taurie M.
Zeitzer, Esq.
Brian Scrivani, Esq.
Email:
tzeitzer@paulweiss.com
bscrivani@paulweiss.com
If to the Guaranteed Party, to:
Cardtronics plc
2050 W. Sam Houston
Parkway South
Suite 1300
Houston, TX 77042
Attention: General Counsel
Email: akilleen@cardtronics.com
with a copy (which shall not constitute actual or
constructive notice) to:
Weil, Gotshal &
Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Michael J. Aiello
Jackie Cohen
E-mail: michael.aiello@weil.com
jackie.cohen@weil.com
Ashurst LLP
London Fruit & Wool
Exchange
1 Duval Square, London, E1 6PW
Attention: Karen Davies
Nick Williamson
E-mail: Karen.davies@ashurst.com
Nick.williamson@ashurst.com
10. No
Assignment. This Limited Guarantee and all of the provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except that neither this Limited Guarantee nor any of the rights,
interests or obligations hereunder may be assigned or delegated by either the Guarantors or the Guaranteed Party to any other Person
without the prior written consent of the Guaranteed Party (in the case of an assignment by any Guarantor) or all of the Guarantors
(in the case of an assignment by the Guaranteed Party) and any purported assignment without such consent shall be null and void
and of no force and effect, except that if a portion of any Guarantor’s commitment under the Equity Commitment Letter is
assigned in accordance with the terms thereof, then a corresponding portion of the Guaranteed Obligation hereunder may be assigned
to the same assignee; provided, that any such assignment will not relieve such Guarantor of its obligations under this Limited
Guarantee.
11. No
Third Party Beneficiaries. This Limited Guarantee is not intended to, and does not, confer upon any Person other than the parties
hereto any rights or remedies hereunder, except that each Related Person of any Guarantor (and any Related Person of such Persons)
shall be considered a third party beneficiary of the provisions of Section 3 and Section 5 hereof
12. Interpretation.
The headings and titles contained in this Limited Guarantee are for convenience purposes only and will not in any way affect the
meaning or interpretation hereof The parties have participated jointly in negotiating and drafting this Limited Guarantee. If an
ambiguity or a question of intent or interpretation arises, this Limited Guarantee shall be construed as if drafted jointly by
the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of
any provision of this Limited Guarantee.
13. Confidentiality.
This Limited Guarantee is being provided to the Guaranteed Party solely in connection with the Acquisition Agreement and the transactions
contemplated thereby. The Guaranteed Party shall keep strictly confidential this Limited Guarantee and all information obtained
by it with respect to the Guarantors in connection with this Limited Guarantee, and will use such information solely in connection
with the transactions contemplated hereby. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to
in any document, except with the prior written consent of each of the Guarantors, if required by applicable Law or by any Order
or by a recognized stock exchange, governmental department or agency or other supervisory or regulated body, or in connection with
court or other Proceedings to enforce the terms and conditions of this Limited Guarantee.
14. Severability.
Any term or provision of this Limited Guarantee that is invalid or unenforceable in any situation in any jurisdiction will not
affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction; provided, however, that this Limited Guarantee may
not be enforced without giving full and absolute effect to the limitation of the amount payable by the Guarantors hereunder to
the Maximum Aggregate Amount and by each Guarantor to its Maximum Guarantor Amount and its Pro Rata Percentage limitations provided
in Section 1 hereof and to the provisions of Section 3 hereof.
15. Governing
Law; Forum.
(a) This
Limited Guarantee and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon,
arise out of or relate to this Limited Guarantee 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 conflicts of laws principles that would
result in the application of the Law of any other state.
(b) To
the fullest extent permitted by applicable Law, each of the parties irrevocably (i) consents to submit itself, and hereby
submits itself, to the personal jurisdiction of the Court of Chancery of the State of Delaware, or solely in the case that the
Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court
located in the State of Delaware, in the event any dispute arises out of this Limited Guarantee or any of the transactions contemplated
by this Limited Guarantee, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion, as
a defense, or other request for leave from any such court, and agrees not to plead or claim (or counterclaim) any objection to
the laying of venue in any such court or that any Proceeding in any such court has been brought in an inconvenient forum, (iii) agrees
that it will not bring any action relating to this Limited Guarantee or any of the transactions contemplated by this Limited Guarantee
in any court other than the Court of Chancery of the State of Delaware, or solely in the case that the Court of Chancery of the
State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court located in the State of
Delaware, (iv) agrees not to assert that it and 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), (v) agrees that this Limited Guarantee, and the subject matter
hereof, may be enforced in or by such courts and (vi) consents to service of process being made through the notice procedures
set forth in Section 9(b); provided, that (A) nothing herein shall affect the right of any party to serve legal
process in any other manner permitted by Law and (B) each such party’s consent to jurisdiction and service contained
in this Section 15 is solely for the purpose referred to in this Section 15 and shall not be deemed to
be a general submission to said courts or in the State of Delaware other than for such purpose.
16. Waiver
of Trial by Jury. EACH OF THE PARTIES HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY IRREVOCABLY WAIVES ANY AND ALL RIGHTS
TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY
(INCLUDING ANY ACTION, LEGAL PROCEEDING, CLAIM OR COUNTERCLAIM INVOLVING ANY FINANCING SOURCE).
[Remainder of Page Intentionally Left
Blank]
IN WITNESS WHEREOF,
the undersigned have duly executed and delivered this Limited Guarantee as of the date first set forth above.
GUARANTORS:
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APOLLO INVESTMENT FUND IX, L.P.
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By:
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Apollo Advisors IX, L.P.,
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its general partner
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By:
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Apollo Capital Management IX, LLC,
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its general partner
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By:
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/s/ Laurie D. Medley
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Name: Laurie D. Medley
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Title: Vice President
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APOLLO OVERSEAS PARTNERS (DELAWARE 892) IX, L.P.
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By:
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Apollo Advisors IX, L.P.,
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its general partner
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By:
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Apollo Capital Management IX, LLC,
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its general partner
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By:
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/s/ Laurie D. Medley
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Name: Laurie D. Medley
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Title: Vice President
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APOLLO OVERSEAS PARTNERS (DELAWARE) IX, L.P.
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By:
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Apollo Advisors IX, L.P.,
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its general partner
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By:
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Apollo Capital Management IX, LLC,
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its general partner
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By:
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/s/ Laurie D. Medley
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Name: Laurie D. Medley
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Title: Vice President
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APOLLO OVERSEAS PARTNERS IX, L.P.
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By:
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Apollo Advisors IX, L.P.,
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its general partner
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By:
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Apollo Capital Management IX, LLC,
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its general partner
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By:
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/s/ Laurie D. Medley
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Name: Laurie D. Medley
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Title: Vice President
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APOLLO OVERSEAS PARTNERS (LUX) IX, GP, S.A R.L., as general partner of
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Apollo Overseas Partners (Lux) IX SCSp, acting by its alternative investment fund manager
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Apollo Investment Management Europe LLP, acting by its delegate
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Apollo Management IX, L.P., acting by its general partner
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AIF IX Management LLC, acting by
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By:
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/s/ Laurie D. Medley
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Name: Laurie D. Medley
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Title: Vice President
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[Signature
Page to Limited Guarantee]
GUARANTEED PARTY:
Cardtronics plc
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By:
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/s/ Mark Rossi
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Name:
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Mark Rossi
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Title:
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Chairman of the Board of Directors
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[Signature
Page to Limited Guarantee]
Exhibit 99.1
FOR
IMMEDIATE RELEASE
Cardtronics
Enters into Definitive Agreement to be Acquired for
$35.00 per share by Funds Affiliated with Apollo Global Management
and Hudson
Executive Capital
Transaction
Valued at $2.3 Billion
HOUSTON and NEW YORK,
December 15, 2020 -- Cardtronics plc (Nasdaq: CATM) (“Cardtronics” or the “Company”), the world’s
largest ATM owner/operator, today announced that it has entered into a definitive agreement with funds (the “Apollo Funds”)
managed by affiliates of Apollo Global Management, Inc. (NYSE: APO) (together with its consolidated subsidiaries, “Apollo”)
and Hudson Executive Capital LP (“Hudson Executive”) to be acquired for $35.00 per share in cash.
The $35.00 per share transaction
price represents a 60% premium to Cardtronics’ volume-weighted average share price over the 30 trading days prior to December
8, 2020 and a 35% premium to its closing share price on December 8, 2020, the day prior to the announcement of Hudson Executive’s
disclosure of its joint proposal with the Apollo Funds to acquire the Company. The transaction price indicates an enterprise value
of $2.3 billion, including net debt.
“This announcement
represents an exciting milestone for Cardtronics and is a testament to the strength and value of our company and the talented team
we have in place,” said Ed West, CEO of Cardtronics. “Our Board of Directors regularly evaluates all opportunities
that have the potential to maximize value for shareholders. Following a comprehensive process and review of alternatives, which
included discussions with strategic buyers and financial sponsors, the Board determined that this transaction is in the best interest
of the Company and our shareholders.”
Continued Mr. West, “As
a private company, supported by Apollo and Hudson Executive, we will have increased flexibility and resources to further invest
in our business to accelerate growth and innovation. We look forward to leveraging Apollo and Hudson Executive’s deep knowledge
and experience investing in and growing companies like ours, as we drive value for our partners, employees, and other stakeholders.”
“Cardtronics is
uniquely positioned within the increasingly complex, global payments ecosystem,” said Apollo Partner Robert Kalsow-Ramos.
“Looking ahead, we see tremendous opportunity to accelerate growth through investment in the Company’s network, capabilities
and people. We are excited to work closely with Ed and the broader team on this next phase of growth and are committed to delivering
best-in-class service and innovative new products for Cardtronics’ valued partners.”
“Cardtronics sits
in the critical nexus between the cash and digital economies. Its broad trusted network of products and solutions provides significant
value to financial institutions, leading retailers and its rapidly growing group of fintech partners,” said Douglas L. Braunstein,
Managing Partner and Founder of Hudson Executive Capital LP. “Together with our partners at Apollo, we are excited about
the Company’s fundamental strengths and the continued value it can deliver to all stakeholders, and I look forward to continue
working with the Cardtronics team.”
Transaction Details
The transaction is not
subject to a financing condition and is expected to close in the first half of calendar year 2021. The transaction is subject to
the satisfaction of customary closing conditions, including approval by Cardtronics shareholders and receipt of regulatory approvals.
Upon completion of the transaction, Cardtronics will become a privately held company and Cardtronics’ common shares will
no longer be listed on any public market.
Given his role as Founder
& Managing Partner of Hudson Executive, Mr. Braunstein recused himself from the Cardtronics Board of Director discussions regarding
the transaction. The other directors of the Board unanimously approved the terms of the transaction and recommend that Cardtronics
shareholders vote in favor of the transaction.
Advisors
Goldman Sachs & Co.
LLC is serving as financial advisor to Cardtronics, and Weil, Gotshal & Manges LLP and Ashurst LLP are serving as legal counsel.
RBC Capital Markets, Barclays
Bank PLC, Mizuho Bank, Ltd. and Deutsche Bank AG are acting as financial advisors to Apollo and Hudson Executive.
Paul, Weiss, Rifkind,
Wharton & Garrison LLP and Cadwalader, Wickersham & Taft LLP are acting as legal advisors to Apollo and Hudson Executive,
respectively.
About Cardtronics (Nasdaq:
CATM)
Cardtronics
is the trusted leader in financial self-service, enabling cash transactions at over 285,000 ATMs across 10 countries in North
America, Europe, Asia-Pacific, and Africa. Leveraging our unmatched scale, expertise and innovation, top-tier merchants
and businesses of all sizes use our ATM solutions to drive growth, in-store traffic, and retail transactions. Financial services
providers rely on Cardtronics to deliver superior service at their own ATMs, on Cardtronics ATMs where they place their brand,
and through Cardtronics' Allpoint Network, the world’s largest retail based surcharge-free ATM network, with over 55,000
locations. As champions of cash, Cardtronics converts digital currency into physical cash, driving payments choice for businesses
and consumers alike. Learn more about Cardtronics by visiting www.cardtronics.com and by following us on LinkedIn and Twitter.
About Apollo
Apollo
is a leading global alternative investment manager with offices in New York, Los Angeles, San Diego, Houston, Bethesda, London,
Frankfurt, Madrid, Luxembourg, Mumbai, Delhi, Singapore, Hong Kong, Shanghai and Tokyo. Apollo had assets under management of
approximately $433 billion as of September 30, 2020 in credit, private equity and real assets funds invested across a core group
of nine industries where Apollo has considerable knowledge and resources. For more information about Apollo, please visit www.apollo.com.
About Hudson Executive Capital LP
Hudson Executive Capital
(“HEC”) is a New York City-based value-oriented investor focused on engaging with US small and mid-cap public companies
with identified and actionable opportunities to create outsized returns. Seasoned operating executives Douglas Braunstein and
Douglas Bergeron lead an experienced investment team to help companies catalyze value and drive returns. A group of 30+ current
and former public company CEOs are LPs in the fund and support all aspects of the investment model, including idea generation,
investment due diligence, and execution. For more information about HEC, please visit www.hudsonexecutive.com.
Contact Information:
Investor Relations
Brad Conrad
832-308-4000
ir@cardtronics.com
|
Media Relations
Lisa Albiston
832-308-4000
corporatecommunications@cardtronics.com
Or
Eric Brielmann / Scott Bisang
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449
|
Apollo Investor Relations
Peter Mintzberg
(212) 822-0528
APOInvestorRelations@apollo.com
Apollo Media Relations
Joanna Rose
(212) 882-0491
communications@apollo.com
Hudson Executive Capital Contact
Steve Lipin / Felipe Ucrós
Gladstone Place Partners 212-230-5930
Additional Information and Where to Find It
This communication may be deemed solicitation material in respect
of the proposed acquisition of the Company by affiliates of Apollo Global Management, Inc. (“Apollo”) and Hudson
Executive Capital, L.P. (“HEC”). This communication does not constitute a solicitation of any vote or approval.
In connection with the proposed transaction, the Company plans to file with the SEC and mail or otherwise provide to its shareholders
a proxy statement regarding the proposed transaction. The Company may also file other documents with the SEC regarding the proposed
transaction. This document is not a substitute for the proxy statement or any other document that may be filed by the Company with
the SEC.
BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S SHAREHOLDERS
ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED BY THE COMPANY WITH
THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY REFERENCE THEREIN BEFORE MAKING ANY VOTING OR INVESTMENT
DECISION WITH RESPECT TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND
THE PARTIES TO THE PROPOSED TRANSACTION.
Any vote in respect of resolutions to be proposed at the Company’s
shareholder meetings to approve the proposed transaction, the Scheme or related matters, or other responses in relation to the
proposed transaction, should be made only on the basis of the information contained in the Company’s proxy statement (including
the Scheme documentation). Shareholders may obtain a free copy of the proxy statement and other documents the Company files with
the SEC (when available) through the website maintained by the SEC at www.sec.gov. The Company makes available free of charge on
its investor relations website at ir.cardtronics.com copies of materials it files with, or furnishes to, the SEC.
No Offer or Solicitation
This communication is for information purposes
only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation
to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer
of securities in any jurisdiction in contravention of applicable law.
The proposed transaction will be implemented
solely pursuant to the Scheme, subject to the terms and conditions of the Acquisition Agreement, which contain the full terms and
conditions of the proposed transaction.
Participants in the Solicitation
The Company and its directors, executive officers and certain
employees and other persons may be deemed to be participants in the solicitation of proxies from the Company’s shareholders
in connection with the proposed transaction. Security holders may obtain information regarding the names, affiliations and interests
of the Company’s directors and executive officers in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2019, which was filed with the SEC on February 28, 2020, and its definitive proxy statement for the 2020 annual general
meeting of shareholders, which was filed with the SEC on April 2, 2020. To the extent the holdings of the Company’s securities
by the Company’s directors and executive officers have changed since the amounts set forth in the Company’s proxy statement
for its 2020 annual general meeting of shareholders, such changes have been or will be reflected on Statements of Change in Ownership
on Form 4 filed with the SEC. Additional information regarding the interests of such individuals in the proposed transaction will
be included in the proxy statement relating to the proposed transaction when it is filed with the SEC. These documents (when available)
may be obtained free of charge from the SEC’s website at www.sec.gov and the investor relations page of the Company’s
website at ir.cardtronics.com.
Forward Looking Statements
This communication relates to a proposed acquisition of the
Company by funds managed by affiliates of Apollo and HEC and includes forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, as amended and are intended to be covered by the safe harbor provisions thereof. The
forward-looking statements relate to future events and are based on management’s current expectations and beliefs relating
to anticipated results of operations, business strategies, the anticipated benefits of the proposed transaction, the anticipated
impact of the proposed transaction on the Company’s business and future financial and operating results, the expected timing
of the proposed transaction, the anticipated closing date for the proposed transaction and other aspects of the Company’s
operations or operating results. These forward-looking statements generally can be identified by phrases such as “will,”
“expect,” “anticipate,” “foresee,” “forecast,” “estimate,” “intend,”
“plan,” “future,” “project,” “contemplate,” “could,” “would,”
and similar expressions that are intended to identify forward-looking statements, which are generally not historical in nature.
It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them
do, what impact they will have on the Company or its share price. The Company’s forward-looking statements involve certain
assumptions and significant risks and uncertainties (some of which are beyond its control) that could cause actual results to differ
materially from its historical experience and present expectations or projections, including but not limited to: the impact of
public health crises, such as pandemics (including coronavirus (COVID-19)) and epidemics and any related company or government
policies and actions to protect the health and safety of individuals or government policies or actions to maintain the functioning
of national or global economies and markets; the effect of the announcement of the proposed transaction on the ability of the Company
to retain and hire key personnel and maintain relationships with customers, suppliers and others with whom the Company does business,
or on the Company’s operating results and business generally; risks that the proposed transaction disrupts current plans
and operations and the potential difficulties in employee retention as a result of the proposed transaction; the outcome of any
legal proceedings related to the proposed transaction; the occurrence of any event, change or other circumstances that could give
rise to the termination of the Acquisition Agreement; the ability of the parties to consummate the proposed transaction on a timely
basis or at all; the satisfaction of the conditions precedent to consummation of the proposed transaction, including the ability
to secure regulatory approvals on the terms expected, at all or in a timely manner; the ability of the Company to implement its
plans, forecasts and other expectations with respect to its business after the completion of the proposed transaction and realize
expected benefits; and business disruption following the proposed transaction.
These risks, as well as other risks related to the proposed
transaction, will be included in the proxy statement that will be filed with the Securities and Exchange Commission (the “SEC”)
in connection with the proposed transaction. While the list of factors presented here is, and the list of factors to be presented
in the proxy statement are, considered representative, no such list should be considered to be a complete statement of all potential
risks and uncertainties. For additional information about other factors that could cause actual results to differ materially from
those described in the forward-looking statements, please refer to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2019, as updated by the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2020, and those set forth from time-to-time in other filings with the SEC. Readers are cautioned not to place undue reliance on
forward-looking statements contained in this communication, which speak only as of the date of this communication. Except as required
by applicable law, the Company undertakes no obligation to publicly update or revise any forward-looking statements after the date
they are made, whether as a result of new information, future events, or otherwise.
Exhibit 99.2
Team,
As you know, we confirmed
last week that we received a proposal from Apollo Global Management and Hudson Executive Capital to acquire Cardtronics. Today,
I am pleased to announce that our Board of Directors has approved us to enter into a definitive agreement with both firms to be
acquired for $35.00 per share.
This agreement represents
an exciting new chapter in Cardtronics’ history. We believe the transition to a privately held company is the best way to
build on our success. It puts us in an even better position to serve our partners, and ensures that our company continues
to grow and thrive. We are thrilled that Apollo Global Management and Hudson Executive Capital
recognize the value and potential of the business, share in our vision for the company, and are committed to helping advance our
strategic plan.
It is important to remember
that today’s announcement is just the first step. Until the transaction closes, which we expect to occur in the first half
of the calendar year 2021, we must continue to focus on delivering value for our customers and executing our plans. During
this time of transition, we ask that you stay as focused as always on your responsibilities.
Below are some additional
questions and answers, and here is a link to the press release. I also plan to discuss this announcement in a virtual town
hall meeting later today, at 9:30 a.m. CT. In advance of the meeting, I invite you to submit your questions using this link.
Thank you again for your
continued hard work and dedication to Cardtronics.
Ed
QUESTIONS AND ANSWERS FOR EMPLOYEES
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We announced that Cardtronics has entered into a definitive agreement to be acquired by funds managed by affiliates of Apollo Global Management and Hudson Executive Capital.
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Apollo Global Management and Hudson Executive Capital are experienced and well-capitalized investors with in-depth knowledge and experience investing in and growing companies like ours.
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As a private company, supported by Apollo Global Management and Hudson Executive Capital, we will have increased flexibility and resources to invest further in our business to accelerate growth and innovation.
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Reaching this agreement is a testament to our company’s strength and value and the talented team we have in place.
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Who is Apollo Global Management?
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Apollo Global Management is one of the world’s preeminent private equity firms.
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It has extensive experience investing in and helping grow companies.
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Apollo Global Management’s philosophy is to seek investments in industry-leading companies and support company management in achieving its strategic plan by providing expertise at the Board of Directors level.
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Apollo Global Management takes a consistent, rigorous, value-oriented approach to its investments. It gives its funds’ portfolio companies the flexibility to invest today in strategies to create value over time.
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Who is Hudson Executive Capital?
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Hudson Executive Capital is the largest shareholder of Cardtronics.
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Hudson Executive Capital is a value-oriented investor that applies a private equity approach to investing, focusing on actionable operational improvements and strategic transactions that can enhance a company’s value.
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It has proven experience working with boards and management teams to provide strategic advice and collaboratively drive operational improvements and capital allocation discipline.
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What are the benefits of this transaction?
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As a private company, supported by Apollo Global Management and Hudson Executive Capital, we will have increased flexibility and resources to invest further in our business to accelerate growth and innovation.
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Additionally, as a private company, our leadership team will be able to focus on operating and growing the company over the longer term.
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Importantly, Apollo Global Management and Hudson Executive Capital recognize the value and potential of the business, share in our vision for the company, and are committed to helping advance our strategic plan.
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Overall, we believe this transaction will put us in an even better position to serve our partners and ensure that our company continues to grow and thrive.
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What does it mean to be a privately held company?
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By becoming a private company, Cardtronics’ stock will no longer trade on a public stock exchange.
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From a day-to-day perspective, our focus will be to continue serving our customers and driving growth. We must all stay focused on our daily responsibilities.
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We believe operating as a private company will provide us with additional flexibility and resources to invest further in our business to accelerate growth and innovation.
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What does this transaction mean for Cardtronics employees?
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The transaction represents a vote of confidence in Cardtronics’ business and our long-term growth prospects.
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In the near-term, we expect that this announcement will have little impact on our day-to-day operations, and it will generally remain business as usual.
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During this time of transition, we ask that you continue to stay focused on delivering results for our customers and executing your responsibilities.
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Apollo Global Management and Hudson Executive Capital recognize our company’s value, talented employees, and strong company culture.
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We believe this transaction will provide many benefits for all our stakeholders, including our employees.
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Will there be any layoffs because of this transaction?
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Please keep in mind that we have only just announced this exciting transaction, and we are committed to keeping you informed as we move through this process.
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We expect minimal changes due to this transaction.
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This transaction is about growth, and we believe that as a company with a stronger financial foundation and additional resources and expertise, there will be expanded opportunities for personal development and career growth.
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We will remain focused on delivering exceptional service to our customers and maintaining our strong company culture. Partnering with these investors should accelerate our growth and success.
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Will there be any changes to employee salaries, compensation, or benefits resulting from the transaction?
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Please keep in mind that we have only just announced this transaction, and there will be no immediate changes to our compensation, benefits, or 401(k) plans.
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If there are any changes in the future, consistent with past practice, we will communicate them to all employees well in advance.
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Will there be any changes in reporting relationships or job responsibilities resulting from the transaction?
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We expect minimal changes as a result of this transaction.
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Until the transaction closes, reporting structures will remain the same.
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What happens to the Cardtronics stock or options that I own? Can we trade Cardtronics shares?
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Holders of Cardtronics common stock will receive $35.00 in cash for each share of common stock you own upon the closing of the transaction.
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Any outstanding unvested options and restricted stock units (RSUs) will vest immediately upon closing. You will receive additional communications from HR as to how all of these mechanics work.
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What do I do if any outside parties contact me about this announcement?
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Consistent with Cardtronics’ policy, if you receive any inquiries from investors, analysts, or the media about the transaction, please do not answer and refer them to the Investor Relations or Corporate Communications teams (Lisa Albiston).
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Where should I go if I have additional questions?
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As we work through the next steps in this process, we are committed to providing further updates about our progress. Always refer to Cardtronics Connect for the latest information.
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If you have any questions in the interim, please don’t hesitate to reach out to your appropriate manager.
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Additional Information and Where to Find It
This communication may be deemed solicitation material in
respect of the proposed acquisition of the Company by affiliates of Apollo Global Management, Inc. (“Apollo”)
and Hudson Executive Capital, L.P. (“HEC”). This communication does not constitute a solicitation of any vote
or approval. In connection with the proposed transaction, the Company plans to file with the SEC and mail or otherwise provide
to its shareholders a proxy statement regarding the proposed transaction. The Company may also file other documents with the SEC
regarding the proposed transaction. This document is not a substitute for the proxy statement or any other document that may be
filed by the Company with the SEC.
BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S SHAREHOLDERS
ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED BY THE COMPANY WITH
THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY REFERENCE THEREIN BEFORE MAKING ANY VOTING OR INVESTMENT
DECISION WITH RESPECT TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND
THE PARTIES TO THE PROPOSED TRANSACTION.
Any vote in respect of resolutions to be proposed at the
Company’s shareholder meetings to approve the proposed transaction, the Scheme or related matters, or other responses in
relation to the proposed transaction, should be made only on the basis of the information contained in the Company’s proxy
statement (including the Scheme documentation). Shareholders may obtain a free copy of the proxy statement and other documents
the Company files with the SEC (when available) through the website maintained by the SEC at www.sec.gov. The Company makes available
free of charge on its investor relations website at ir.cardtronics.com copies of materials it files with, or furnishes to, the
SEC.
No Offer or Solicitation
This communication is for information purposes
only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation
to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer
of securities in any jurisdiction in contravention of applicable law.
The proposed transaction will be implemented
solely pursuant to the Scheme, subject to the terms and conditions of the Acquisition Agreement, which contain the full terms and
conditions of the proposed transaction.
Participants in the Solicitation
The Company and its directors, executive officers and certain
employees and other persons may be deemed to be participants in the solicitation of proxies from the Company’s shareholders
in connection with the proposed transaction. Security holders may obtain information regarding the names, affiliations and interests
of the Company’s directors and executive officers in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2019, which was filed with the SEC on March 2, 2020, and its definitive proxy statement for the 2020 annual general
meeting of shareholders, which was filed with the SEC on April 1, 2020. To the extent the holdings of the Company’s securities
by the Company’s directors and executive officers have changed since the amounts set forth in the Company’s proxy statement
for its 2020 annual general meeting of shareholders, such changes have been or will be reflected on Statements of Change in Ownership
on Form 4 filed with the SEC. Additional information regarding the interests of such individuals in the proposed transaction will
be included in the proxy statement relating to the proposed transaction when it is filed with the SEC. These documents (when available)
may be obtained free of charge from the SEC’s website at www.sec.gov and the investor relations page of the Company’s
website at ir.cardtronics.com.
Forward Looking Statements
This communication relates to a proposed acquisition of the
Company by funds managed by affiliates of Apollo and HEC and includes forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, as amended and are intended to be covered by the safe harbor provisions thereof. The
forward-looking statements relate to future events and are based on management’s current expectations and beliefs relating
to anticipated results of operations, business strategies, the anticipated benefits of the proposed transaction, the anticipated
impact of the proposed transaction on the Company’s business and future financial and operating results, the expected timing
of the proposed transaction, the anticipated closing date for the proposed transaction and other aspects of the Company’s
operations or operating results. These forward-looking statements generally can be identified by phrases such as “will,”
“expect,” “anticipate,” “foresee,” “forecast,” “estimate,” “intend,”
“plan,” “future,” “project,” “contemplate,” “could,” “would,”
and similar expressions that are intended to identify forward-looking statements, which are generally not historical in nature.
It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them
do, what impact they will have on the Company or its share price. The Company’s forward-looking statements involve certain
assumptions and significant risks and uncertainties (some of which are beyond its control) that could cause actual results to differ
materially from its historical experience and present expectations or projections, including but not limited to: the impact of
public health crises, such as pandemics (including coronavirus (COVID-19)) and epidemics and any related company or government
policies and actions to protect the health and safety of individuals or government policies or actions to maintain the functioning
of national or global economies and markets; the effect of the announcement of the proposed transaction on the ability of the Company
to retain and hire key personnel and maintain relationships with customers, suppliers and others with whom the Company does business,
or on the Company’s operating results and business generally; risks that the proposed transaction disrupts current plans
and operations and the potential difficulties in employee retention as a result of the proposed transaction; the outcome of any
legal proceedings related to the proposed transaction; the occurrence of any event, change or other circumstances that could give
rise to the termination of the Acquisition Agreement; the ability of the parties to consummate the proposed transaction on a timely
basis or at all; the satisfaction of the conditions precedent to consummation of the proposed transaction, including the ability
to secure regulatory approvals on the terms expected, at all or in a timely manner; the ability of the Company to implement its
plans, forecasts and other expectations with respect to its business after the completion of the proposed transaction and realize
expected benefits; and business disruption following the proposed transaction.
These risks, as well as other risks related to the proposed
transaction, will be included in the proxy statement that will be filed with the Securities and Exchange Commission (the “SEC”)
in connection with the proposed transaction. While the list of factors presented here is, and the list of factors to be presented
in the proxy statement are, considered representative, no such list should be considered to be a complete statement of all potential
risks and uncertainties. For additional information about other factors that could cause actual results to differ materially from
those described in the forward-looking statements, please refer to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2019, as updated by the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2020, and those set forth from time-to-time in other filings with the SEC. Readers are cautioned not to place undue reliance on
forward-looking statements contained in this communication, which speak only as of the date of this communication. Except as required
by applicable law, the Company undertakes no obligation to publicly update or revise any forward-looking statements after the date
they are made, whether as a result of new information, future events, or otherwise.