Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2.):
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).
If an emerging growth company, indicate by check mark
if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement |
Merger
Agreement
On
February 27, 2023 (the “Execution Date”), Focus Financial Partners Inc., a Delaware corporation (the “Company”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company, Ferdinand FFP Acquisition,
LLC, a Delaware limited liability company (“Parent”) that is affiliated with Clayton, Dubilier & Rice, LLC (“CD&R”)
and Stone Point Capital LLC (“Stone Point”), Ferdinand FFP Merger Sub 1, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Company Merger Sub”), Ferdinand FFP Merger Sub 2, LLC, a Delaware limited liability company and a wholly-owned
subsidiary of Parent (“LLC Merger Sub”, and collectively with Company Merger Sub, “Merger Subs”), and Focus Financial
Partners, LLC, a Delaware limited liability company and a subsidiary of the Company (“Focus LLC”). Capitalized terms used
and not otherwise defined herein have the meaning set forth in the Merger Agreement, which is attached hereto as Exhibit 2.1.
Upon
the terms and subject to the conditions set forth in the Merger Agreement, (a) LLC Merger Sub will merge with and into Focus LLC
(the “LLC Merger”), with Focus LLC surviving the LLC Merger and (b) Company Merger Sub will merge with and into
the Company (the “Company Merger” and, collectively with the LLC Merger, the “Mergers”), with the Company
surviving the Company Merger.
At the effective time
of the Company Merger (the “Company Merger Effective Time”), (a) each share of Class A common stock, par value
$0.01 per share, of the Company (“Class A Common Stock”) issued and outstanding immediately prior to the Company Merger
Effective Time, other than Excluded Shares, will be converted into the right to receive $53 per share of Class A Common Stock
in cash, without interest (the “Merger Consideration”), and (b) each share of Class B common stock, par
value $0.01 per share of the Company (“Class B Common Stock” and together with the Class A Common Stock, the
“Company Stock”) issued and outstanding immediately prior to the Company Merger Effective Time will automatically be
cancelled and cease to exist. At the effective time of the LLC Merger (the “LLC Merger Effective Time”), each of the
Common Units and Incentive Units of Focus LLC (each, a “Focus LLC Unit”) issued and outstanding immediately prior
to the LLC Merger Effective Time and after the Vested Units Exchanges, other than (i) the Rollover Units and any other Focus
LLC Units owned by Parent and (ii) the Focus LLC Units owned by the Company or any of its wholly owned subsidiaries, will be
cancelled and forfeited for no consideration.
At the Company Merger Effective
Time, (a) each then outstanding option to purchase shares of Company Stock (a “Company Option”) that is vested and
has a per share exercise price that is less than the Merger Consideration immediately prior to the Company Merger Effective Time, will
be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the number of shares of Company
Stock subject to the Company Option immediately prior to the Company Merger Effective Time multiplied by (ii) the excess, if any,
of (A) the Merger Consideration over (B) the exercise price per share of Company Stock of such Company Option (the “Option
Consideration”), (b) each then outstanding Company Option that is unvested and has a per share exercise price that is less
than the Merger Consideration immediately prior to the Company Merger Effective Time will be cancelled and converted into a Contingent
Cash Award equal to the Option Consideration with respect to such Company Option, (c) each Company Option (whether vested or unvested)
that has a per share exercise price equal to or greater than the Merger Consideration will be cancelled for no consideration, and (d) each
then outstanding restricted stock unit award corresponding to shares of Company Stock (a “Company RSU”) that is unvested
immediately prior to the Company Merger Effective Time will be cancelled and converted into a Contingent Cash Award in an amount equal
to the product of (i) the number of shares of Company Stock corresponding to such Company RSU immediately prior to the Company Merger
Effective Time, and by (ii) the Merger Consideration.
Immediately
prior to and conditioned upon the LLC Merger Effective Time, the Company will require each member of Focus LLC (other than
the Company and its wholly-owned subsidiaries and Parent) to effect an Exchange (as defined in the Fourth Amended and Restated
Operating Agreement of Focus LLC, dated as of July 30, 2018, as amended (the “Focus LLC Agreement”)) of all
outstanding Vested Common Units held by such member (including, with respect to each such member who holds Vested Incentive
Units, the applicable number of Vested Common Units received as a result of the conversion (based on the IU Conversion Ratio) of
Vested Incentive Units held by such member that have a Hurdle Amount that is less than the Merger Consideration), other than the
Rollover Units, together with, as applicable, the surrender for cancellation of the corresponding number of shares of Class B Common Stock, in accordance with the Focus LLC
Agreement (the “Vested Units Exchanges”). Also on the
date of the Closing and prior to the LLC Merger Effective Time, each Incentive Unit, whether a Vested Incentive Unit or unvested
Incentive Unit, that has a Hurdle Amount that is equal to or greater than the Merger Consideration shall, automatically and without
any action on the part of Focus LLC, Parent, the Company, or the holder thereof, be cancelled for no consideration.
At the Company Merger Effective
Time, each outstanding unvested Common Unit held by a member of Focus LLC (other than the Company and its wholly owned Subsidiaries or
Parent) (including, with respect to each such member who holds unvested Incentive Units, each unvested Common Unit received as a result
of the conversion (based on the IU Conversion Ratio) of unvested Incentive Units held by such member that have a Hurdle Amount that is
less than the Merger Consideration) shall automatically be cancelled and converted into a Contingent Cash Award equal to the Merger Consideration, which Contingent Cash Award will vest and become payable pursuant to the same vesting schedule applicable
to the corresponding unvested Common Unit or Incentive Unit, as applicable.
A
special committee (the “Special Committee”) of the board of directors of the Company (the “Company
Board”), comprised solely of disinterested and independent members of the Company Board, unanimously recommended that the
Company Board approve and declare advisable the Merger Agreement and the transactions contemplated thereby, including the Mergers,
and that, subject to Company Board approval, the Company Board recommend that the stockholders of the Company vote in favor of
adoption of the Merger Agreement. The Company Board, acting on the recommendation of the Special Committee, unanimously recommended that the stockholders of the Company
vote in favor of adoption of the Merger Agreement. Both the Special Committee and the Company Board determined that the Merger Agreement
and the transactions contemplated thereby, including the Mergers, are fair to, and in the best interests of, the Company and its stockholders
other than CD&R, Stone Point and certain of their affiliates and portfolio companies and persons who are “officers” of
the Company within the meaning of Rule 16a-1(f) of the Exchange Act.
Consummation
of the Mergers is subject to the satisfaction or, if permitted by law, waiver by Parent, the Company or both of a number of
conditions, including among other customary closing conditions that (a) the adoption of the Merger Agreement by the affirmative
vote of (i) the holders of a majority in voting power of the outstanding shares of Company Stock, voting together as a single
class, and entitled to vote thereon and (ii) the holders of a majority in voting power of the outstanding shares of Company
Stock, voting together as a single class, held by the stockholders other than CD&R, Stone Point and certain of their affiliates
and portfolio companies and persons who are “officers” of the Company within the meaning of Rule 16a-1(f) of
the Exchange Act (clauses (i) and (ii), collectively, the “Requisite Company Stockholder Approvals”), (b) the
waiting period applicable to the consummation of the Mergers under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 has
expired or been terminated and the necessary approvals, clearances or expirations of waiting periods under certain other antitrust,
foreign direct investment and other laws have been obtained or deemed obtained as a result of the expiry of applicable waiting
periods, (c) no court or other governmental authority has enacted, announced, issued, promulgated, enforced or entered into
any law that restrains, enjoins, renders illegal or otherwise prohibits consummation of the Mergers and (d) the absence of a material adverse effect since the date of the Merger Agreement. Moreover, each party’s
obligation to consummate the Mergers is subject to certain other conditions, including the accuracy of the other party’s
representations and warranties (subject to certain materiality qualifiers) and the other party’s compliance with its covenants
and agreements contained in the Merger Agreement (subject to certain materiality qualifiers).
The Company has made various
representations and warranties and agreed to certain covenants in the Merger Agreement, including covenants relating to the Company’s
conduct of its business between the date of the Merger Agreement and the earlier of the date on which the closing of the Mergers (“Closing”)
occurs and the termination of the Merger Agreement and other matters.
The Merger Agreement
contains a “go-shop” covenant permitting the Company to solicit Acquisition Proposals from Third Persons during the
period beginning on the Execution Date and continuing until (a) 11:59 p.m. Eastern Time on April 8, 2023 (the “No-Shop Period
Start Date”) for any Person or “group” who is not an Excluded Party, or (b) in respect of any Excluded Party,
the earlier of (i) 11:59 p.m. Eastern Time on April 18, 2023 (the “Cut-Off Time”) and (ii) the time that such Excluded Party
otherwise ceases to be an Excluded Party in accordance with the definition of “Excluded Party” in the Merger Agreement.
From the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time) until the earlier of the termination of
the Merger Agreement and the Company Merger Effective Time, the Company has agreed not to solicit alternative Acquisition Proposals
from third parties or provide information to, and participate in discussions and engage in negotiations with, third parties
regarding any alternative Acquisition Proposals, subject to certain exceptions to permit the Company’s Board of Directors to
comply with its fiduciary obligations. Notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue
to engage in certain activities with respect to any Excluded Party, including with respect to any amended or modified Acquisition
Proposal submitted by any Excluded Party following the No-Shop Period Start Date until the earlier of (i) the Cut-Off Time and
(ii) the time that such Person ceases to be an Excluded Party. Prior to the receipt of the Requisite Company Stockholder
Approvals, subject to satisfaction of certain conditions and under the circumstances specified in the Merger Agreement, either the
Company Board (acting on the recommendation of the Special Committee) or the Special Committee may effect a Change of Recommendation
(a) in response to a bona fide written Acquisition Proposal that did not arise from a breach of the non-solicitation provisions set
forth in the Merger Agreement, if the Company Board (acting on the recommendation of the Special Committee) or the Special Committee
determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal
is a Superior Proposal or (b) in response to an Intervening Event, if the Company Board (acting on the recommendation of the Special
Committee) or the Special Committee determines in good faith, after consultation with its financial advisors and outside legal
counsel, that a failure to effect a Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary
obligations under applicable law.
The Merger Agreement
contains certain termination rights for the parties, including the right of either party, subject to specified limitations, to
terminate the Merger Agreement if the Mergers are not consummated on or before November 27, 2023. The Merger Agreement also
provides that upon termination of the Merger Agreement in specified circumstances including termination by the Company to accept and
enter into a definitive agreement with respect to a Superior Proposal or termination by Parent following a Change of
Recommendation, or the occurrence of other, customary circumstances, the Company must pay Parent a termination fee of $150,350,000.
If the Company terminates the Merger Agreement to accept a Superior Proposal with (a) an Excluded Party prior to the Cut-Off
Time or (b) any Person prior to the No-Shop Period Start Date, then the termination fee would be $69,392,000.
Certain investment funds
affiliated with or managed by CD&R and Stone Point (such funds, the “Guarantors”) have delivered to the Company (a) limited
guarantees in favor of the Company and pursuant to which the Guarantors are guaranteeing certain obligations of Parent and Merger Subs
in connection with the Merger Agreement and (b) executed commitment letters between Parent and each of the Guarantors pursuant to
which the Guarantors have, together, committed to invest sufficient funds in Parent to finance the Merger Consideration, the Option Consideration
and the Closing TRA Payoff Amount.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is
attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Merger Agreement has
been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other
factual information about the Company. The representations, warranties and covenants contained in the Merger Agreement were made only
for purposes of that agreement and as of specific dates, were solely for the benefit of the parties
to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these
matters as facts and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable
to investors. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations
of the actual state of facts or condition of the Company, Parent or Merger Subs or any of their respective subsidiaries or affiliates.
Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Support
Agreement
As
a condition and inducement to Parent’s willingness to enter into the Merger Agreement and concurrently with the execution and
delivery of the Merger Agreement, certain investment funds affiliated with or managed by Stone Point that own shares of Company
Stock (the “Stone Point Stockholders”), the Company and Parent entered into a support agreement pursuant to which, among
other things, the Stone Point Stockholders have agreed to support the transactions contemplated by the Merger Agreement and vote in
favor of the matters to be submitted to the Company’s stockholders in connection with the Mergers, refrain from soliciting or
supporting other Acquisition Proposals and contribute, directly or indirectly, and immediately prior to the Vested Units Exchanges, a portion of the shares of Company Stock and Focus LLC Units held by them to an indirect sole owner of Parent in exchange
for certain equity interests of such owner of Parent, on the terms and subject to the conditions set forth in the Support
Agreement and thereafter such Company Stock and Focus LLC Units shall be contributed to Parent.
The Support Agreement
will terminate upon the earliest to occur of the Closing, the valid termination of the Merger Agreement in accordance with its
terms, an amendment to the Merger Agreement without the prior written consent of the Stone Point Stockholders that reduces the
amount of the Merger Consideration or changes the form of the Merger Consideration or the written consent of the parties.
The foregoing description
of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the Support Agreement, which
is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
TRA Waiver and Exchange Agreement
Concurrently with the
execution and delivery of the Merger Agreement, the Company and Parent entered into agreements with each of the Stone Point
Stockholders and certain members of the Company’s senior leadership team regarding the terms and conditions for the
satisfaction of the Company’s obligations to such Persons pursuant to the Tax Receivable Agreements (the “TRA Waiver and
Exchange Agreements”). Under the terms of the Tax Receivable Agreements, a Change of Control (as defined under the Tax
Receivable Agreements, which includes the occurence of certain mergers and consolidations, including the Company Merger) will result
in a lump-sum payment generally equal to the present value of hypothetical future payments that would be made by the Company for
certain tax benefits, calculated using particular assumptions specified in the Tax Receivable Agreements (the “TRA Payoff
Amount”). Under the TRA Waiver and Exchange Agreements, each of the Stone Point Stockholders and each of such members of the
Company’s senior leadership team agreed to receive their portion of the TRA Payoff Amount in the form of a promissory
note at Closing with a principal amount equal to their respective portion of the TRA Payoff Amount they were otherwise entitled to
receive in cash at the Closing. All other parties to the Tax Receivable Agreements will receive their respective portion of the TRA
Payoff Amount in cash at the Closing (the “Closing TRA Payoff Amount”).
The foregoing
description of the TRA Waiver and Exchange Agreements does not purport to be complete and is qualified in its entirety by reference
to a form of the TRA Waiver and Exchange Agreement, which is attached hereto as Exhibit 10.2 and is incorporated herein by
reference.
Cautionary Note Concerning Forward-Looking Statements
This report contains certain forward-looking statements
that reflect the Company’s current views with respect to certain current and future events. Specific forward-looking statements
include, among others, statements regarding the potential benefits of the proposed transaction, the Company’s plans, objectives
and expectations and consummation of the proposed transaction. These forward-looking statements are and will be, subject to many risks,
uncertainties and factors which may cause future events to be materially different from these forward-looking statements or anything implied
therein. These risks and uncertainties include, but are not limited to: the timing, receipt and terms and conditions of any required governmental
or regulatory approvals of the proposed transaction that could reduce the anticipated benefits of or cause the parties to abandon the
proposed transaction; risks related to the satisfaction of the conditions to closing the proposed transaction (including the failure to
obtain necessary regulatory approvals or the necessary approvals of the Company’s stockholders) in the anticipated timeframe or
at all; the risk that any announcements relating to the proposed transaction could have adverse effects on the market price of the Company’s
common stock; disruption from the proposed transaction making it more difficult to maintain business and operational relationships, including
retaining and hiring key personnel and partner firm clients and others with whom the Company and its partner firms do business; the occurrence
of any event, change or other circumstances that could give rise to the termination of the merger agreement entered into in connection
with the proposed transaction; risks related to disruption of management’s attention from the Company’s ongoing business operations
due to the proposed transaction; significant transaction costs; the risk of litigation and/or regulatory actions related to the proposed
transaction; global economic conditions; adverse industry and market conditions; the ability to retain management and other personnel;
and other economic, business, or competitive factors. Any forward-looking statements in this communication are based upon information
available to the Company on the date of this report. The Company does not undertake to publicly update or revise its forward-looking statements
even if experience or future changes make it clear that any statements expressed or implied therein will not be realized. Additional information
on risk factors that could affect the Company may be found in the Company’s filings with the Securities and Exchange Commission
(the “SEC”).
Important Information for Stockholders
The proposed transaction
will be submitted to the stockholders of the Company for their consideration. In connection with the proposed transaction, the Company
will file a proxy statement and other materials with the SEC, and the Company, affiliates of Stone Point and affiliates of CD&R will
jointly file a transaction statement on Schedule 13e-3 (the “Schedule 13e-3”). In addition, the Company may also file other
relevant documents with the SEC regarding the proposed transaction. After the proxy statement and the Schedule 13e-3 has been cleared
by the SEC, a definitive proxy statement, Schedule 13e-3 and WHITE proxy card will be mailed to the stockholders of the Company.
INVESTORS AND STOCKHOLDERS ARE URGED TO READ THE
PROXY STATEMENT, SCHEDULE 13E-3 (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND OTHER RELEVANT DOCUMENTS THAT MAY BE FILED
WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION.
Investors and stockholders may obtain a free copy
of the proxy statement(s) (when available) and other documents filed with the SEC by the Company, at the Company’s website,
www.focusfinancialpartners.com, or at the SEC’s website, www.sec.gov. The proxy statement, Schedule 13e-3 and other relevant documents
may also be obtained for free from the Company by writing to Focus Financial Partners Inc., 875 Third Avenue, 28th Floor, New York, NY
10022, Attention: Investor Relations.
Participants in the Solicitation
The Company and its directors
and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection
with the proposed transaction. Information about the directors and executive officers of the Company is set forth in the Proxy Statement
on Schedule 14A for the 2022 annual meeting of the Company’s stockholders, which was filed with the SEC on April 14, 2022
and in other documents filed by the Company with the SEC. These documents can be obtained free of charge from the sources indicated above.
Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security
holdings or otherwise, will be contained in the proxy statement and other relevant materials to be filed with the SEC when they become
available.
| Item 9.01 | Financial
Statements and Exhibits. |
(d) Exhibits.
Exhibit No. |
|
Description |
2.1* |
|
Agreement and Plan of Merger, dated as of February 27, 2023, by and among Focus Financial Partners Inc., Ferdinand FFP Acquisition, LLC, Ferdinand FFP Merger Sub 1, Inc., Ferdinand FFP Merger Sub 2, LLC, and Focus Financial Partners, LLC. |
10.1 |
|
Support Agreement, dated as of February 27, 2023, by and among Trident FFP L.P., Trident VI, L.P., Trident VI Parallel Fund, L.P., Trident VI DE Parallel Fund, L.P., the Company, Parent and certain affiliates of Parent. |
10.2 |
|
Form of TRA Waiver and Exchange Agreement |
104 |
|
Cover Page Interactive Data File - the cover page iXBRL tags are embedded within the inline XBRL document. |
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation
S-K. The Company hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
SIGNATURES
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.
|
FOCUS FINANCIAL PARTNERS INC. |
|
|
|
By: |
/s/ J. Russell McGranahan |
|
|
J. Russell McGranahan |
|
|
General Counsel |
Dated: February 28, 2023
Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER
by and among
FERDINAND FFP ACQUISITION, LLC,
FERDINAND FFP MERGER SUB 1, INC.
FERDINAND FFP MERGER SUB 2, LLC
FOCUS FINANCIAL PARTNERS, LLC
and
FOCUS FINANCIAL PARTNERS INC.
Dated as of February 27, 2023
TABLE OF CONTENTS
Page
Article I The Exchanges; the Mergers; Closing; Effective Times |
3 |
1.1. |
The Exchanges |
3 |
1.2. |
The Mergers |
4 |
1.3. |
Closing |
5 |
1.4. |
Effective Times |
5 |
|
|
|
Article II Organizational Documents of the Surviving Corporation and the Surviving LLC |
6 |
2.1. |
Certificate of Formation of the Surviving LLC |
6 |
2.2. |
LLCA of the Surviving LLC |
6 |
2.3. |
Certificate of Incorporation of the Surviving Corporation |
6 |
2.4. |
Bylaws of the Surviving Corporation |
6 |
|
|
|
Article III Directors and Officers of the Surviving Corporation and the Surviving LLC |
6 |
3.1. |
Directors of the Surviving Corporation |
6 |
3.2. |
Officers of the Surviving Corporation |
7 |
3.3. |
Officers of the Surviving LLC |
7 |
|
|
|
Article IV Effect of the Mergers; Exchange of Shares |
7 |
4.1. |
Rollover Shares |
7 |
4.2. |
Effect of the Company Merger; Conversion of Securities |
7 |
4.3. |
Effect of the LLC Merger; Conversion of Securities |
8 |
4.4. |
Exchange of Shares |
9 |
4.5. |
Treatment of Company Equity Awards |
12 |
4.6. |
Adjustments to Prevent Dilution |
13 |
|
|
|
Article V Representations and Warranties |
13 |
5.1. |
Representations and Warranties of the Company |
13 |
5.2. |
Representations and Warranties of Parent and Merger Subs |
45 |
|
|
|
Article VI Covenants |
49 |
6.1. |
Interim Operations |
49 |
6.2. |
Acquisition Proposals; Change of Recommendation |
56 |
6.3. |
Proxy Statement Filing; Schedule 13e-3; Information Supplied |
62 |
6.4. |
Company Stockholders Meeting |
64 |
6.5. |
Efforts; Cooperation; Antitrust Matters |
64 |
6.6. |
Information; Access and Reports |
67 |
6.7. |
Stock Exchange Delisting |
68 |
6.8. |
Publicity |
68 |
6.9. |
Employee Benefits |
69 |
6.10. |
Expenses |
70 |
6.11. |
Indemnification; Directors’ and Officers’ Insurance |
71 |
6.12. |
Stockholder Litigation |
73 |
6.13. |
Equity Financing |
74 |
6.14. |
Other Actions by the Company |
75 |
6.15. |
Obligations of Parent |
75 |
6.16. |
Tax Matters |
76 |
6.17. |
Tax Receivable Agreements Payoff |
77 |
6.18. |
Cooperation with Debt Financing |
78 |
6.19. |
Client Notices and Consents |
84 |
6.20. |
FINRA and State BD Approvals |
87 |
6.21. |
FIRPTA Certificate and IRS Form |
87 |
6.22. |
Notification of Certain Matters |
88 |
6.23. |
Transfer Restrictions |
88 |
6.24. |
Topco Board |
88 |
|
|
|
Article VII Conditions |
89 |
7.1. |
Conditions to Each Party’s Obligation to Effect the Mergers |
89 |
7.2. |
Conditions to Obligations of Parent and Merger Subs |
89 |
7.3. |
Conditions to Obligation of the Company |
91 |
|
|
|
Article VIII Termination |
91 |
8.1. |
Termination |
91 |
8.2. |
Effect of Termination and Abandonment |
93 |
|
|
|
Article IX Miscellaneous and General |
95 |
9.1. |
Survival |
95 |
9.2. |
Modification or Amendment |
96 |
9.3. |
Waiver |
96 |
9.4. |
Counterparts |
96 |
9.5. |
Governing Law and Venue; Waiver of Jury Trial; Specific Performance |
97 |
9.6. |
Notices |
98 |
9.7. |
Entire Agreement |
101 |
9.8. |
No Third-Party Beneficiaries |
101 |
9.9. |
Special Committee Approval |
102 |
9.10. |
Obligations of Parent and of the Company |
102 |
9.11. |
Transfer Taxes |
102 |
9.12. |
Definitions |
102 |
9.13. |
Severability |
102 |
9.14. |
Interpretation; Construction |
103 |
9.15. |
Successors and Assigns |
103 |
9.16. |
No Recourse |
104 |
9.17. |
Necessary Further Actions |
104 |
9.18. |
No Liability for Financing Sources |
104 |
Annex A |
Defined Terms |
|
Exhibit A |
Form of Support Agreement |
Exhibit A |
Exhibit B |
Form of Exchange Notice |
Exhibit B |
Exhibit C |
Certificate
of Incorporation of the Surviving Company |
Exhibit C |
Exhibit D-1 |
Form of Affirmative Consent Notice |
Exhibit D-1 |
Exhibit D-2 |
Form of Negative Consent Notice |
Exhibit D-2 |
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF
MERGER (this “Agreement”), dated as of February 27, 2023, is by and among Ferdinand FFP Acquisition, LLC, a
Delaware limited liability company (“Parent”), Ferdinand FFP Merger Sub 1, Inc., a Delaware corporation and
a wholly-owned Subsidiary of Parent (“Company Merger Sub”), Ferdinand FFP Merger Sub 2, LLC, a Delaware
limited liability company and a wholly-owned Subsidiary of Parent (“LLC Merger Sub”, and collectively with
Company Merger Sub, “Merger Subs”), Focus Financial Partners Inc., a Delaware corporation (the “Company”),
and Focus Financial Partners, LLC, a Delaware limited liability company (“Focus LLC”). Parent, the Company and
Merger Subs are referred to herein as the “Parties” and each, a “Party.”
RECITALS
WHEREAS, the Parties intend
that, on the terms and subject to the conditions set forth in this Agreement, (a) LLC Merger Sub shall merge with and into Focus LLC (the
“LLC Merger”), with Focus LLC surviving the LLC Merger, pursuant to and in accordance with the provisions of
the Delaware Limited Liability Company Act, as may be amended from time to time (the “DLLCA”), and (b) immediately
following the LLC Merger, Company Merger Sub shall merge with and into the Company (the “Company Merger”, and
collectively with the LLC Merger, the “Mergers”), with the Company surviving the Company Merger, pursuant to
and in accordance with the provisions of the General Corporation Law of the State of Delaware, as may be amended from time to time (the
“DGCL”);
WHEREAS, the sole member and
manager of Parent has unanimously approved and declared advisable this Agreement and the transactions contemplated hereby;
WHEREAS, the board of directors
of Company Merger Sub has unanimously (i) determined that the Company Merger is fair to, and in the best interests of, Company Merger
Sub and its sole stockholder, (ii) approved and declared advisable this Agreement and the Company Merger and any other transactions
contemplated hereby, (iii) directed that the adoption of this Agreement be submitted to a vote of Parent in its capacity as Company
Merger Sub’s sole stockholder, and (iv) resolved to recommend that Parent vote in favor of the adoption of this Agreement in
accordance with the DGCL;
WHEREAS, Parent, as the sole
member and manager of LLC Merger Sub, has (i) determined that the LLC Merger is fair to, and in the best interests of, LLC Merger Sub
and (ii) approved and declared advisable this Agreement and the LLC Merger and any other transactions contemplated hereby;
WHEREAS, immediately following
the execution and delivery of this Agreement, Parent, in its capacity as the sole stockholder of Company Merger Sub, will execute and
deliver to Company Merger Sub (with a copy also sent to the Company) a written consent adopting this Agreement in accordance with the
DGCL;
WHEREAS, the board of
directors of the Company (the “Company Board”) has established a special committee of the Company Board
(the “Special Committee”), comprised solely of disinterested and independent members of the Company Board,
and empowered the Special Committee to, among other things, (i) review, evaluate and negotiate a potential transaction involving
the acquisition by certain Affiliates of Clayton, Dubilier & Rice, LLC (“CD&R”) of all of the
outstanding shares of Company Stock (including all of the equity of Focus LLC) in a cash merger transaction or any alternative to
such potential transaction, and (ii) to make a recommendation to the Company Board as to what action, if any, should be taken by
the Company Board with respect to the foregoing;
WHEREAS, the Special Committee
has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Mergers, are fair to,
and in the best interests of, the Company and the Unaffiliated Stockholders, (ii) recommended that the Company Board approve
and declare advisable this Agreement and the transactions contemplated hereby, including the Mergers, and determine that this Agreement
and the transactions contemplated hereby, including the Mergers, are fair to, and in the best interests of, the Company and the Unaffiliated
Stockholders and (iii) recommended that, subject to Company Board approval, the Company Board submit this Agreement to the stockholders
of the Company for their adoption and recommend that the stockholders of the Company vote in favor of the adoption of this Agreement;
WHEREAS, the Company Board
(acting on the recommendation of the Special Committee) has by unanimous vote (i) determined that this Agreement and the transactions
contemplated hereby, including the Mergers, are fair to, and in the best interests of, the Company and its stockholders, including the
Unaffiliated Stockholders, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including
the Mergers, (iii) approved the execution and delivery of this Agreement, the performance by the Company of its covenants and
other obligations contained herein and the consummation of the Mergers and the other transactions contemplated hereby upon the terms and
subject to the conditions contained herein, (iv) directed that the adoption of this Agreement be submitted to a vote of the stockholders
of the Company at a meeting of the stockholders of the Company and (v) recommended that the stockholders of the Company vote in favor
of the adoption of this Agreement;
WHEREAS, the Company, in its
capacity as Managing Member (as defined in the Focus LLC Agreement) of Focus LLC and owner of a majority of the outstanding Focus LLC
Units, has (i) determined that the LLC Merger is fair to, and in the best interests of, Focus LLC, (ii) approved and declared advisable
this Agreement and the LLC Merger and any other transactions contemplated hereby and (iii) approved the execution and delivery of this
Agreement, the performance by Focus LLC of its covenants and other obligations contained herein and the consummation of the LLC Merger
and the other transactions contemplated hereby upon the terms and subject to the conditions contained herein.
WHEREAS, as a condition
and inducement to the Company’s willingness to enter into this Agreement, Parent and Merger Subs have delivered to the Company
concurrently with the execution of this Agreement (i) limited guarantees (the “Guarantees”) from
Clayton, Dubilier & Rice Fund XII, L.P., a Cayman Islands exempted limited partnership, and Trident IX, L.P., a Cayman Islands
exempted limited partnership, Trident IX Parallel Fund, L.P., a Cayman Islands exempted limited partnership, and Trident IX
Professionals Fund, L.P., a Cayman Islands exempted limited partnership (collectively,
the “Guarantors”), in favor of the Company and pursuant to which, subject to the terms and conditions
contained therein, the Guarantors are guaranteeing certain obligations of Parent and Merger Subs in connection with this Agreement;
and (ii) the Equity Commitment Letters;
WHEREAS, as a condition and
inducement to the Parent’s willingness to enter into this Agreement and concurrently with the execution and delivery of this Agreement,
Trident VI, L.P., a Cayman Islands exempted limited partnership, Trident VI Parallel Fund, L.P., a Cayman Islands exempted limited partnership,
and Trident VI DE Parallel Fund, L.P., a Delaware limited partnership (collectively, the “Existing Stockholders”),
the Company and Parent and certain Affiliates of Parent have entered into a support agreement in connection with the transactions contemplated
hereby in the form attached hereto as Exhibit A (the “Support Agreement”), pursuant to which, among other things,
the Existing Stockholders have agreed to contribute, directly or indirectly, and immediately prior to the Closing, a portion of the shares
of Company Stock and Focus LLC Units held by them to Parent (or any direct or indirect parent company thereof), on the terms and subject
to the conditions set forth in the Support Agreement;
WHEREAS, concurrently with
the execution and delivery of this Agreement, the Company, Parent and certain of the parties to the Tax Receivable Agreements are entering
into agreements regarding the terms and conditions for the satisfaction of the Company’s obligations to such Persons pursuant to
the Tax Receivable Agreements (the “TRA Holder Agreements”); and
WHEREAS, Parent, Merger Subs
and the Company desire to make certain representations, warranties, covenants and agreements in connection with this Agreement and to
set forth certain conditions to the Mergers.
NOW, THEREFORE, in consideration
of the representations, warranties, covenants and agreements set forth in this Agreement, the Parties, intending to be legally bound,
agree as follows:
Article
I
The Exchanges; the Mergers; Closing; Effective Times
1.1.
The Exchanges.
(a)
Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date (which shall constitute the “Change
of Control Exchange Date” as defined in the Focus LLC Agreement), following the Rollover and immediately prior to and conditioned
upon the LLC Merger Effective Time, the Company shall require each member of Focus LLC (other than the Company and its wholly owned Subsidiaries
and Parent) to effect an Exchange (as defined in the Focus LLC Agreement) of all outstanding Vested Common Units held by such member (including,
with respect to each such member who holds Vested Incentive Units, the applicable number of Vested Common Units received as a result of
the conversion (based on the IU Conversion Ratio (as defined in the Focus LLC Agreement)) of Vested Incentive Units held by such member
that have a Hurdle Amount (as defined in the Focus LLC Agreement) that is less than the Merger Consideration), other than the Rollover
Units, together with, as applicable, the surrender for cancellation of corresponding number of shares of Class B Common Stock in accordance
with Section 3.8 of the Focus LLC Agreement (the “Vested Units Exchanges”).
(b)
At the Company Merger Effective Time, each then outstanding unvested Common Unit held by a member of Focus LLC (other than the
Company and its wholly owned Subsidiaries or Parent) (including, with respect to each such member who holds unvested Incentive Units,
each unvested Common Unit received as a result of the conversion (based on the IU Conversion Ratio) of unvested Incentive Units held by
such member that have a Hurdle Amount that is less than the Merger Consideration) shall automatically be cancelled and converted into
a Contingent Cash Award in an amount equal to the amount that would be payable pursuant to Section 4.5 if such unvested Common
Unit were a Company Restricted Share.
(c)
On the Closing Date, following the Rollover and prior to the Company Merger Effective Time and the LLC Merger Effective Time, each
Incentive Unit, whether a Vested Incentive Unit or unvested Incentive Unit, that has a Hurdle Amount that is equal to or greater than
the Merger Consideration shall, automatically and without any action on the part of Focus LLC, Parent, the Company, or the holder thereof,
be cancelled for no consideration.
(d)
The Company shall, and shall cause Focus LLC to, take such other actions as are necessary or desirable to permit and effect
the Vested Units Exchanges and otherwise give effect to the treatment of the Common Units and Incentive Units contemplated by this Section
1.1 and Section 4.5 on the Closing Date, including the cancellation of each Incentive Unit that has a Hurdle Amount that is
equal to or greater than the Merger Consideration. No later than the fifth Business Day following the date hereof, the Company shall cause
Focus LLC to deliver a written notice of a PubCo Approved Change of Control (as defined in the Focus LLC Agreement), in the form attached
hereto as Exhibit B, to members of Focus LLC in accordance with Section 3.8 of the Focus LLC Agreement (such notice shall specify
that any Focus LLC Units held by Parent or any of its Affiliates at the time of the Vested Units Exchanges and any Rollover Units shall
not be subject to the Vested Units Exchanges). For the avoidance of doubt, the Vested Units Exchanges shall not be effective if the Mergers
are not consummated in accordance with the terms hereof.
1.2.
The Mergers.
(a)
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DLLCA, following the consummation
of the Vested Units Exchanges and in connection with the consummation of the Rollover, LLC Merger Sub shall be merged with and into Focus
LLC and the separate limited liability company existence of LLC Merger Sub shall thereupon cease. Focus LLC shall continue as the surviving
company of the LLC Merger (sometimes hereinafter referred to as the “Surviving LLC”). From and after the LLC
Merger Effective Time, the LLC Merger will have the effects as set forth in this Agreement, the LLC Certificate of Merger and the applicable
provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the LLC Merger Effective Time all (i)
of the property, rights, privileges, powers and franchises of Focus LLC and LLC Merger Sub will vest in the Surviving LLC; and (ii)
debts, liabilities and duties of Focus LLC and LLC Merger Sub will become the debts, liabilities and duties of the Surviving LLC.
(b) Upon
the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, immediately following the LLC
Merger, Company Merger Sub shall be merged with and into the Company and the separate corporate existence of Company Merger Sub
shall thereupon cease. The Company shall continue as the surviving corporation of the Company Merger (sometimes hereinafter referred
to as the “Surviving Corporation”). From and after the Company Merger Effective Time, the Company Merger
will have the effects as set forth in this Agreement, the Company Certificate of Merger and the applicable provisions of the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the Company Merger Effective Time all (i) of the
property, rights, privileges, powers and franchises of the Company and Company Merger Sub will vest in the Surviving Corporation;
and (ii) debts, liabilities and duties of the Company and Company Merger Sub will become the debts, liabilities and duties of
the Surviving Corporation.
1.3.
Closing. Unless otherwise mutually agreed in writing between the Company (with the prior written consent of
the Special Committee) and Parent, the closing of the transactions contemplated by this Agreement (the “Closing”)
shall take place at the offices of Vinson & Elkins LLP, 1114 Avenue of the Americas, New York, NY 10036 (or at the request of either
Party, by means of a virtual Closing through electronic exchange of documents and signatures), at 9:00 a.m. (New York time) on the third
Business Day following the day on which the last to be satisfied or waived (to the extent waivable under applicable Law and this Agreement)
of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver (to the extent waivable under applicable Law and this Agreement) of those conditions) shall
be satisfied or waived in accordance with this Agreement; provided, that, notwithstanding the foregoing, the Closing shall not
occur until the earlier of (a) a date during the Marketing Period specified by Parent on no fewer than three Business Days’ notice
to the Company (unless a shorter period shall be agreed to by Parent and the Company) and (b) the third Business Day following the final
day of the Marketing Period (subject, in each case, to the satisfaction or waiver (to the extent waivable under applicable Law and this
Agreement) of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at
the Closing, but subject to the satisfaction or waiver (to the extent waivable under applicable Law and this Agreement) of those conditions);
provided, further, that notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to consummate
the Closing prior to the 60th day following the Notice Date (or such earlier date as provided by Parent to the Company in writing). The
date on which the Closing actually occurs is referred to as the “Closing Date.”
1.4.
Effective Times.
(a)
Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, the Company and Parent will cause
the LLC Merger to be consummated by filing all necessary documentation, including a certificate of merger in customary form and substance
(the “LLC Certificate of Merger”) to be executed and filed with the Secretary of State of the State of Delaware
in accordance with the DLLCA. The LLC Merger shall become effective at the time when the LLC Certificate of Merger has been filed with
the Secretary of State of the State of Delaware or at such later time as may be agreed by the Parties (with the prior written consent
of the Special Committee) in writing and specified in the LLC Certificate of Merger (the “LLC Merger Effective Time”).
(b) Upon
the terms and subject to the conditions set forth in this Agreement, on the Closing Date, the Company and Parent will cause the
Company Merger to be consummated by filing all necessary documentation, including a certificate of merger in customary form and
substance (the “Company Certificate of Merger”, and collectively with the LLC Certificate of Merger, the
“Certificates of Merger”) to be executed and filed with the Secretary of State of the State of Delaware in
accordance with the DGCL. The Company Merger shall become effective at the time when the Company Certificate of Merger has been
filed with the Secretary of State of the State of Delaware or at such later time as may be agreed by the Parties (with the prior
written consent of the Special Committee) in writing and specified in the Company Certificate of Merger (the “Company
Merger Effective Time”); provided, that the Company Merger Effective Time shall occur immediately after the LLC
Merger Effective Time.
Article
II
Organizational Documents of the Surviving Corporation and the Surviving LLC
2.1.
Certificate of Formation of the Surviving LLC. At the LLC Merger Effective Time, the certificate of formation
of Focus LLC as in effect immediately prior to the LLC Merger Effective Time shall remain unchanged and shall continue to be the certificate
of formation of the Surviving LLC, until thereafter amended as provided therein, as provided by applicable Law and consistent with the
obligations set forth in Section 6.11.
2.2.
LLCA of the Surviving LLC. At the LLC Merger Effective Time, the limited liability company agreement of Focus
LLC shall be amended and restated in its entirety to read as the limited liability company agreement of LLC Merger Sub read immediately
prior to the LLC Merger Effective Time, except that references to LLC Merger Sub’s name shall be replaced with references to “Focus
Financial Partners, LLC”, until thereafter amended as provided therein or as provided by applicable Law and consistent with the
obligations set forth in Section 6.11.
2.3.
Certificate of Incorporation of the Surviving Corporation. At the Company Merger Effective Time, the certificate
of incorporation of Company as in effect immediately prior to the Company Merger Effective Time shall be amended and restated in its entirety
to read as set forth in Exhibit C to this Agreement and, as so amended and restated, shall be the certificate of incorporation
of the Surviving Corporation (the “Charter”) until thereafter amended as provided therein or as provided by
applicable Law and consistent with the obligations set forth in Section 6.11.
2.4.
Bylaws of the Surviving Corporation. At the Company Merger Effective Time, the bylaws of the Company shall
be amended and restated in their entirety to read as the bylaws of Company Merger Sub read immediately prior to the Company Merger Effective
Time (the “Bylaws”), until thereafter amended as provided therein, by the Charter or as provided by applicable
Law and consistent with the obligations set forth in Section 6.11.
Article
III
Directors and Officers of the Surviving Corporation and the Surviving LLC
3.1. Directors
of the Surviving Corporation. At the Company Merger Effective Time, the initial directors of the Surviving Corporation will
be the directors of Company Merger Sub as of immediately prior to the Company Merger Effective Time, with each to hold office until
their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in
accordance with the DGCL, the Charter and the Bylaws.
3.2.
Officers of the Surviving Corporation. At the Company Merger Effective Time, the initial officers of the Surviving
Corporation will be the officers of the Company as of immediately prior to the Company Merger Effective Time, with each to hold office
until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance
with the DGCL, the Charter and the Bylaws.
3.3.
Officers of the Surviving LLC. At the LLC Merger Effective Time, the officers of the Surviving LLC will be
the officers of Focus LLC as of immediately prior to the LLC Merger Effective Time, with each to hold office until their successors have
been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the DLLCA and the
organizational documents of the Surviving LLC.
Article
IV
Effect of the Mergers; Exchange of Shares
4.1.
Rollover Shares. Immediately prior to the Vested Units Exchanges, the Class A Rollover Shares shall be contributed,
directly or indirectly, to an indirect sole owner of Parent pursuant to the terms of the Support Agreement and thereafter such Class A
Rollover Shares shall be contributed indirectly to Parent.
4.2.
Effect of the Company Merger; Conversion of Securities. Upon the terms and subject to the conditions set forth
in this Agreement, at the Company Merger Effective Time, as a result of the Company Merger and without any action on the part of Parent,
Company Merger Sub, the Company or the holder of any capital stock of the Company:
(a) Merger
Consideration. Each share of Class A Common Stock issued and outstanding immediately prior to the Company Merger Effective
Time (including, for the avoidance of doubt, each share of Class A Common Stock resulting from the exchange of Common Units
(including Common Units received as a result of the conversion of Incentive Units into Common Units) for shares of Class A Common
Stock in accordance with the Focus LLC Agreement and pursuant to Section 1.1), other than (i) shares of Company
Stock that are to be cancelled in accordance with Section 4.2(b), (ii) the Class A Rollover Shares, and
(iii) shares of Company Stock that are issued and outstanding as of immediately prior to the Company Merger Effective Time
and held by stockholders of the Company who have not voted in favor of the adoption of this Agreement (or consented thereto in
writing) and who have properly demanded appraisal of such shares of Company Stock in accordance with, and who have otherwise
complied with, Section 262 of the DGCL (the shares of Company Stock referred to in clause (iii), “Dissenting
Shares,” and the shares of Company Stock referred to in clause (i), clause (ii) and clause (iii), collectively,
“Excluded Shares”) shall be automatically converted into the right to receive $53.00 per share of Class A
Common Stock in cash, without interest (the “Merger Consideration”). At the Company Merger Effective Time,
all of the shares of Class A Common Stock converted into the right to receive the Merger Consideration pursuant to this Section 4.2(a)
shall cease to be outstanding, shall be cancelled and shall cease to exist, and each share of Class A Common Stock (in each case,
other than Excluded Shares) shall thereafter represent only the right to receive the Merger Consideration. As of the Company Merger
Effective Time, each share of Class B Common Stock issued and outstanding immediately prior to the Company Merger Effective Time
shall be automatically cancelled and shall cease to exist and no payment shall be made with respect thereto, and the holders thereof
shall cease to have any rights with respect thereto.
(b)
Cancellation of Certain Shares. Any shares of Company Stock that are held by the Company as treasury stock and not
held on behalf of third parties, any shares of Company Stock owned by Parent or Merger Subs and any shares of Company Stock owned by any
direct or indirect wholly owned subsidiary of Parent or Merger Subs (including the Class A Rollover Shares), in each case, that are issued
and outstanding immediately prior to the Company Merger Effective Time, shall, as a result of the Company Merger and without any action
on the part of the holder of such shares of Company Stock, cease to be outstanding, be automatically cancelled without payment of any
consideration therefor or any conversion thereof and cease to exist.
(c)
Company Merger Sub. Each share of a class or series of capital stock, par value $0.01 per share, of Company Merger
Sub issued and outstanding immediately prior to the Company Merger Effective Time shall, as a result of the Company Merger and without
any action on the part of the holder of such shares, be converted into one share of the same class or series of capital stock, par value
$0.01 per share, of the Surviving Corporation.
4.3.
Effect of the LLC Merger; Conversion of Securities.
(a)
Immediately prior to the Vested Units Exchanges, the Rollover Units shall be contributed, directly or indirectly, to Parent or
one of its Affiliates pursuant to the terms of the Support Agreement.
(b)
At the LLC Merger Effective Time, except as set forth in Section 1.1(b), each Focus LLC Unit issued and outstanding immediately
prior to the LLC Merger Effective Time and after the Vested Units Exchanges, other than (i) the Rollover Units and any other Focus LLC
Units owned by Parent and (ii) the Focus LLC Units owned by the Company or by any of its wholly owned Subsidiaries (the units described
in clauses (i) and (ii), the “Excluded Units”), will automatically and without any action on the part of the
holder thereof, be cancelled and forfeited for no consideration.
(c)
Each Excluded Unit shall remain outstanding following the LLC Merger Effective Time and the Closing.
(d)
Each limited liability company interest of LLC Merger Sub issued and outstanding immediately prior to the LLC Merger Effective
Time shall, as a result of the LLC Merger and without any action on the part of the holder of such interests, be converted into one Common
Unit of the Surviving LLC.
(e)
Any employment Tax withholding required in connection with unvested Common Units becoming Vested Common Units in connection with
the transactions contemplated by this Agreement shall be satisfied through “net settlement” of Vested Common Units prior to
any Exchanges using the Merger Consideration price in calculating the net settled amount.
4.4.
Exchange of Shares.
(a)
Appointment of Paying Agent. Prior to the Company Merger Effective Time, Parent shall appoint the Company’s
transfer agent or another bank or trust company reasonably acceptable to the Company to serve as the paying agent (the “Paying
Agent”) and shall enter into an agreement reasonably acceptable to the Company relating to the Paying Agent’s responsibilities
with respect to this Agreement.
(b)
Deposit of Merger Consideration. At or prior to the Company Merger Effective Time, Parent shall deposit, or cause
to be deposited, with the Paying Agent cash in U.S. Dollars sufficient to pay the aggregate Merger Consideration (other than in respect
of Excluded Shares) under Section 4.2(a) (such cash being hereinafter referred to as the “Payment Fund”);
provided, that upon Parent’s written request, the Company shall, or shall cause Focus LLC to, deposit any portion of the
proceeds of the Debt Financing into the Payment Fund to reduce any portion of the Merger Consideration required to be deposited by Parent
pursuant to the terms hereof. The Payment Fund shall not be used for any purpose other than a purpose expressly provided for in this Agreement.
Pending its disbursement in accordance with this Section 4.4, the Payment Fund shall be invested by the Paying Agent, if so
directed by Parent. Any such investment, if made, must be made in (i) short-term direct obligations of the United States of America,
(ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the
payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Moody’s Investors
Service, Inc. or Standard and Poor’s Ratings Services or (iv) certificates of deposit, bank repurchase agreements or banker’s
acceptances of commercial banks with capital exceeding $1 billion. If the Payment Fund diminishes for any reason below the level required
for the Paying Agent to promptly pay the Merger Consideration in accordance herewith, including upon shares of Company Stock ceasing to
qualify as Dissenting Shares, Parent shall or shall cause the Surviving Corporation to promptly replace or restore the cash in the Payment
Fund so as to ensure that the Payment Fund is at all times maintained at a level sufficient for the Paying Agent to make all payments
of Merger Consideration in accordance herewith. No investment losses resulting from investment of the funds deposited with the Paying
Agent shall diminish the rights of any holder of shares of Company Stock to receive the Merger Consideration as provided herein. Payments
to holders in respect of each Company Option shall be paid through the Company’s, the Surviving Corporation’s or any of their
Subsidiaries’ applicable payroll procedures following the Company Merger Effective Time at such time as such awards are payable.
(c)
Procedures for Surrender.
(i) With
respect to shares of Company Stock held, directly or indirectly, through The Depository Trust Company
(“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC,
DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the Paying Agent will transmit
to DTC or its nominees as promptly as practicable after the Company Merger Effective Time, upon surrender of shares of Company Stock
held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as
agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary or desirable third-party
intermediaries, the Merger Consideration to which the beneficial owners thereof are entitled to receive as a result of the Merger
pursuant to this Article IV.
(ii)
Upon surrender to the Paying Agent of shares of Company Stock that (A) are not held through DTC, by book receipt of an
“agent’s message” in customary form by the Paying Agent in connection with the surrender of shares of Company Stock
(or such other reasonable evidence, if any, of surrender with respect to such shares of Company Stock, as the Paying Agent may reasonably
request), and (B) are shares of Company Stock held, directly or indirectly, through DTC, in accordance with DTC’s customary
surrender procedures and such other procedures as agreed to by the Company, Parent, the Paying Agent, DTC, DTC’s nominees and such
other necessary or desirable third-party intermediaries, the holder of such shares of Company Stock shall be entitled to receive in
exchange therefor, and Parent shall cause the Paying Agent to deliver to each such holder, as promptly as reasonably practicable after
the Company Merger Effective Time, by wire transfer or a check in the amount (after giving effect to any required Tax withholdings as
provided in Section 4.4(g)) of cash that such holder has the right to receive pursuant to Section 4.2(a).
(iii)
No interest will be paid or accrued on any amount payable upon surrender of any shares of Company Stock.
(iv)
Payment of the Merger Consideration with respect to shares of Company Stock shall only be made to the Persons in whose name such
shares of Company Stock are registered in the stock transfer records of the Company.
(d)
Transfers. From and after the Company Merger Effective Time, there shall be no transfers on the stock transfer books
of the Company of the shares of Company Stock that were outstanding immediately prior to the Company Merger Effective Time. If, after
the Company Merger Effective Time, any acceptable evidence of a share of Company Stock is presented to the Surviving Corporation, Parent
or the Paying Agent for transfer, it shall be cancelled and exchanged for the cash amount in immediately-available funds to which
the holder thereof is entitled to receive as a result of the Company Merger pursuant to this Article IV.
(e)
Termination of Payment Fund. Any portion of the Payment Fund (including the proceeds of any investments of the Payment
Fund) that remains unclaimed by, or otherwise undistributed to, the holders of shares of Company Stock by the one-year anniversary
of the Company Merger Effective Time shall be delivered to Parent or an Affiliate thereof designated by Parent. Any holder of shares of
Company Stock (other than Excluded Shares) who has not theretofore complied with this Article IV shall thereafter look only to
Parent for payment of the Merger Consideration (after giving effect to any required Tax withholdings as provided in Section 4.4(g))
upon delivery of the shares of Company Stock, without any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation,
Parent, the Paying Agent or any other Person shall be liable to any former holder of shares of Company Stock for any amount properly delivered
to a public official pursuant to applicable abandoned property, escheat or similar Laws. To the fullest extent permitted by Law, immediately
prior to the date any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, such Merger
Consideration shall become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(f)
Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary, Dissenting Shares shall not
be converted into the right to receive the Merger Consideration but instead will be entitled to only such rights as are granted by Section
262 of the DGCL. The holders of Dissenting Shares shall be entitled to receive payment of the appraised value of such Dissenting Shares
in accordance with the provisions of Section 262 of the DGCL, unless and until such holder of Dissenting Shares fails to perfect
or otherwise fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or waives or otherwise loses
such holder’s rights to appraisal of such Dissenting Shares pursuant to Section 262 of the DGCL, or a court of competent jurisdiction
determines that such holder is not entitled to the relief provided by Section 262 of the DGCL. If any such holder of Dissenting Shares
fails to perfect or otherwise fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or waives or
otherwise loses such right to appraisal of such Dissenting Shares pursuant to Section 262 of the DGCL or a court of competent jurisdiction
determines that such holder is not entitled to the relief provided by Section 262 of the DGCL, such Dissenting Shares shall be deemed
to have been converted into, and have become exchangeable for, as of the Company Merger Effective Time, the right to receive the Merger
Consideration, without any interest thereon, and shall not thereafter be deemed to be Dissenting Shares. The Company shall (i) give
Parent notice of any written demands for appraisal of shares of Company Stock, withdrawals of such demands and any other instruments served
pursuant to the DGCL and received by the Company with respect to the Dissenting Shares promptly after receipt by the Company and (ii) give
Parent the opportunity, at Parent’s sole expense, to participate in and direct all negotiations and proceedings with respect to
such demands for appraisal pursuant to the DGCL in respect of such Dissenting Shares. The Company shall not, except with the prior written
consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), make any payment with respect to any such demands
for appraisal or offer to settle or settle any such demands. Prior to the Closing, Parent shall not, except with the prior written consent
of the Company (which consent shall have been approved by the Special Committee), require the Company to make any payment with respect
to any such demands for appraisal or offer to settle or settle any such demands.
(g) Withholding
Rights. Each of Parent, the Company, Merger Subs, the Surviving Corporation and the Paying Agent (and any Affiliates and
designees of the foregoing), as applicable, shall be entitled to deduct or withhold, or cause to be deducted or withheld, from the
amounts otherwise payable pursuant to this Agreement such amounts as it reasonably determines it is required to deduct or withhold
with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the
“Code”), or any other applicable U.S. federal, state or local or non-U.S. Law. To the extent that amounts
are so deducted or withheld and timely remitted to the applicable Governmental Authority, such deducted or withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was
made. Except with respect to any amounts payable pursuant to Section 1.1(b) or Section 4.5 or deductions or
withholdings arising under Section 4.3(e) or from any failure to provide the form described in Section 6.21(ii) for
any holder of equity interests in Focus LLC that is not a “United States person” within the meaning of Section
7701(a)(30) of the Code, to the extent any Party or any of the Guarantors becomes aware of any obligation to deduct or withhold any
amount from any payment hereunder with respect to any equity interests in Focus LLC, then such Person shall use commercially
reasonable efforts to provide notice to the Parties as soon as reasonably practicable of the intent to deduct or withhold and the
basis for such deduction or withholding, and the Parties shall, and shall cause their applicable Affiliates, permitted successors
and assigns to, reasonably cooperate with one another in order to eliminate or reduce any such deduction or withholding to the
extent possible, including providing a reasonable opportunity for the applicable payee to provide forms or other evidence that would
mitigate, reduce or eliminate such deduction or withholding.
4.5.
Treatment of Company Equity Awards.
(a)
Treatment of Company Options.
(i)
At the Company Merger Effective Time, each then outstanding option to purchase shares of Company Stock (a “Company
Option”) that is vested and has a per share exercise price that is less than the Merger Consideration immediately prior
to the Company Merger Effective Time, 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 equal to the product of (A) the number of shares of Company Stock subject to
the Company Option immediately prior to the Company Merger Effective Time multiplied by (B) the excess, if any, of (1) the Merger
Consideration over (2) the exercise price per share of Company Stock of such Company Option (the “Option Consideration”).
The Surviving Corporation or one of its Subsidiaries, as applicable, shall pay to the holders of such vested Company Options the cash
amounts described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or
any provisions of state, local or international Tax Law with respect to the making of such payment, as promptly as practicable following
the Company Merger Effective Time.
(ii)
At the Company Merger Effective Time, each then outstanding Company Option that is unvested and has a per share exercise price
that is less than the Merger Consideration immediately prior to the Company Merger Effective Time shall, automatically and without any
action on the part of the holder thereof, be cancelled and converted into a contingent right to receive an amount in cash, without interest
(a “Contingent Cash Award”), equal to the Option Consideration with respect to such Company Option. Such Contingent
Cash Award shall vest and become payable pursuant to the same vesting schedule applicable to such Company Option from which it was converted
immediately prior to the Company Merger Effective Time, subject to the holder’s continued employment with or service to Parent and
its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting dates.
(iii)
At the Company Merger Effective Time, each Company Option (whether vested or unvested) that has a per share exercise price equal
to or greater than the Merger Consideration shall, automatically and without any action on the part of Parent, the Company, or the holder
thereof, be cancelled for no consideration.
(b) Treatment
of Company RSUs. At the Company Merger Effective Time, each then outstanding restricted stock unit award corresponding to
shares of Company Stock (a “Company RSU”) that is unvested immediately prior to the Company Merger
Effective Time shall, automatically and without any action on the part of Parent, the Company, or the holder thereof, be cancelled
and converted into a Contingent Cash Award in an amount equal to the product of (A) the number of shares of Company Stock
corresponding to such Company RSU immediately prior to the Company Merger Effective Time, by (B) the Merger Consideration. Such
Contingent Cash Award shall vest and become payable pursuant to the same vesting schedule applicable to such Company RSU from which
it was converted immediately prior to the Company Merger Effective Time, subject to the holder’s continued employment with or
service to Parent and its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting
dates.
(c)
Treatment of Company Restricted Shares. At the Company Merger Effective Time, each then outstanding share of Company
Stock subject to forfeiture, vesting or other lapse conditions (each, a “Company Restricted Share”) as of immediately
prior to the Company Merger Effective Time shall, automatically and without any action on the part of Parent, the Company, or the holder
thereof, be cancelled and converted into a Contingent Cash Award in an amount equal to the Merger Consideration. Such Contingent Cash
Award shall vest and become payable pursuant to the same vesting schedule applicable to such Company Restricted Share from which it was
converted immediately prior to the Company Merger Effective Time, subject to the holder’s continued employment with or service to
Parent and its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting dates.
(d)
Corporate Actions. At or prior to the Company Merger Effective Time, the Company, the Company Board and the
Compensation Committee of the Company, as applicable, shall adopt any resolutions and take any other actions that are necessary to effectuate
the treatment of the Company Options, Company RSUs, and Company Restricted Shares pursuant to this Section 4.5, and to terminate
the Company Equity Plan, such that, following the Company Merger Effective Time, there shall be no outstanding Company Options, Company
RSUs, or Company Restricted Shares (whether vested or unvested). The Company shall pay or cause to be paid the amounts due pursuant to
Section 4.5(a)(i).
4.6.
Adjustments to Prevent Dilution. Notwithstanding anything in this Agreement to the contrary, if, from the
date of this Agreement to the earlier of the Company Merger Effective Time and termination of this Agreement in accordance with Article
VIII, the number of shares of Company Stock or securities convertible or exchangeable into or exercisable for shares of Company Stock
shall have been changed into a different number of shares of Company Stock or securities, or a different class, by reason of any reclassification,
stock split (including a reverse stock split), stock dividend or distribution, recapitalization or other similar transaction, the Merger
Consideration shall be equitably adjusted to provide the holders of shares of Company Stock the same economic effect as contemplated by
this Agreement prior to such event; provided that, for the avoidance of doubt, no adjustment shall be made for the issuance of Class A
Common Stock upon the Vested Units Exchanges in accordance with Section 1.1 or otherwise prior to the Company Merger Effective
Time in accordance with the terms of the Focus LLC Agreement; provided further that nothing in this Section 4.6 shall be construed
to permit the Company or any Subsidiary of the Company to take any action otherwise prohibited by the terms of this Agreement.
Article
V
Representations and Warranties
5.1. Representations
and Warranties of the Company. Except as set forth in the Company Reports filed by the Company with the Securities and
Exchange Commission (the “SEC”) from and including February 17, 2022 and publicly available prior to the
date of this Agreement (including, in each case, all exhibits and schedules thereto and documents incorporated by reference therein,
but excluding, in each case, any disclosures set forth in any risk factor or “forward-looking statements” section or any
similar section, to the extent they are forward-looking in nature) or in the disclosure schedule delivered to Parent and Merger Subs
by the Company immediately prior to the execution of this Agreement (the “Company Disclosure Schedule”)
(it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Schedule shall be deemed
disclosed with respect to any other section or subsection to the extent that the relevance of such item is reasonably apparent), the
Company hereby represents and warrants to Parent and Merger Subs that:
(a)
Organization, Good Standing and Qualification. The Company is a corporation duly incorporated, validly existing and
in good standing under the Laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease and
operate its properties and assets and to carry on its business as presently conducted, except where the failure to be in good standing
or have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
The Company is qualified to do business and is in good standing (with respect to jurisdictions that recognize such concept or a similar
concept) 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 qualified or in good standing would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. Each of the Company’s Subsidiaries is a legal entity duly organized, validly existing
and in good standing (with respect to jurisdictions that recognize such concept or a similar concept) 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 is in good standing as a foreign corporation or other
legal entity (with respect to jurisdictions that recognize such concept or a similar concept) 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, existing, qualified or in good standing, or to have such power or authority, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(b)
Capital Structure.
(i) As
of the date of this Agreement, the authorized capital stock of the Company consists of 1,500,000,000 shares of capital stock,
consisting of (A) 500,000,000 shares of Class A Common Stock, (B) 500,000,000 shares of Class B Common Stock, and
(C) 500,000,000 shares of preferred stock, $0.01 par value per share (“Preferred Stock”). As of
February 24, 2023: (1) 65,944,217 shares of Class A Common Stock were issued and outstanding, (2) 11,827,321 shares
of Class B Common Stock were outstanding, (3) no shares of Preferred Stock were issued and outstanding,
(4) 22,849,246 Vested Focus LLC Units (including 11,827,321 Vested Common Units and 11,021,925 Vested Incentive Units and
excluding, for the avoidance of doubt, Focus LLC Units held by the Company or its Subsidiaries) exchangeable for 18,260,513 shares
of Class A Common Stock at a value of $53.00 per share of Class A Common Stock pursuant to the Focus LLC Agreement, were issued and
outstanding, (5) 5,877,509 unvested Focus LLC Units (including 296,548 unvested Common Units and 5,580,961 unvested
Incentive Units), exchangeable, which if vested, would be exchangeable for 2,122,127 shares of Class A Common Stock at a value of
$53.00 per share of Class A Common Stock pursuant to the Focus LLC Agreement, were issued and outstanding, (6) 2,446,744
shares of Class A Common Stock were subject to outstanding Company Options, (7) 252,719 shares of Class A Common Stock were
subject to outstanding Company RSUs and (8) no shares of Class A Common Stock and no shares of Class B Common Stock were
issued and held in treasury of the Company. Since February 24, 2023, neither the Company nor Focus LLC has issued any securities
(including derivative or convertible securities) except for (A) Common Units issued in exchange for Incentive Units pursuant
to the Focus LLC Agreement, (B) shares of Class A Common Stock issued in exchange for Common Units and Incentive Units
pursuant to the Focus LLC Agreement, (C) shares of Class A Common Stock issued as the result of the exercise of Company
Options or settlement of Company RSUs or (D) any issuances permitted by Section 6.1.
(ii)
Section 5.1(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list as of February 24, 2023
of all outstanding Focus LLC Units, Company Options and Company RSUs granted under the Company Equity Plan or otherwise (the “Company
Equity Awards”), indicating, with respect to each Company Equity Award then outstanding, the type of award granted, the
number of shares of Class A Common Stock subject to such Company Equity Award, the plan under which such Company Equity Award was granted,
the date of grant, the vesting schedule, any performance targets or similar conditions to the vesting, exercisability or settlement thereof,
the vested status, the hurdle amount (if applicable), and in the case of any Company Option, the exercise price, expiration date, and
whether such Company Option is intended to constitute an “incentive stock option” within the meaning of Section 422 of the
Code.
(iii)
All of the outstanding shares of Company Stock are duly authorized and validly issued in accordance with the Company’s organizational
documents, as applicable, and are fully paid and nonassessable. All of the outstanding shares of Company Stock have not been issued in
violation of any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person. Section
5.1(b)(iii) of the Company Disclosure Schedule sets for a complete and accurate list of all of the Company’s Subsidiaries as
of the date hereof. All of the issued and outstanding equity interests in each of the Company’s Subsidiaries (including Focus LLC)
are authorized and validly issued in accordance with the respective organizational documents of such Subsidiaries and are fully paid (to
the extent required under such Subsidiaries’ organizational documents) and nonassessable and have not been issued in violation of
any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person. As of the date hereof
and the Closing Date, other than the Focus LLC Units owned by the Members other than the Company or its Subsidiaries, the Company owns,
directly or indirectly, all of the outstanding equity interests in each of its Subsidiaries free and clear of all Liens other than (A) transfer
restrictions imposed by federal and state securities Laws, (B) those arising under the Existing Credit Document and (C) any
transfer restrictions contained in the organizational documents of the Company and its Subsidiaries.
(iv) Except
as set forth in the organizational documents of the Company and except as otherwise provided in Section 5.1(b)(i), there
are no preemptive rights or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, phantom
equity interests, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or
rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any equity interests or any securities or
obligations convertible or exchangeable into or exercisable for, giving any Person a right to subscribe for or acquire or measured
by reference to, any equity interests in the Company or any of its Subsidiaries, and no securities or obligations evidencing such
rights are authorized, issued or outstanding.
(v)
Neither the Company nor any of its Subsidiaries have any outstanding bonds, debentures, notes or other obligations the holders
of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the holders of equity
interests in the Company or any of its Subsidiaries on any matter.
(vi)
Section 5.1(b)(vi) of the Company Disclosure Schedule sets forth a complete and accurate list as of February 24, 2023
of all voting trusts, voting proxies 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 shares of Company Stock or other equity interest of the Company or any of its Subsidiaries.
(vii)
Except with respect to the ownership of any equity or long-term debt securities between or among the Company or any of its Subsidiaries,
none of the Company or any of its Subsidiaries owns, directly or indirectly, any equity or long-term debt securities of any Person.
(c)
Corporate Authority; Approval.
(i)
The Company has all requisite corporate power and authority and has taken all corporate action necessary to execute, deliver and
perform its covenants and obligations under this Agreement in accordance with the terms hereof and to consummate the Mergers and any other
transactions contemplated by this Agreement, subject only to the Requisite Company Stockholder Approvals. Except for the Requisite Company
Stockholder Approvals, no other corporate action by the Company (other than, in the case of the Mergers, the filing of the Certificates
of Merger and the other documents as required by DGCL with the Secretary of State of the State of Delaware) or vote of holders of any
class of the capital stock of the Company is necessary to approve and adopt this Agreement and to consummate the Mergers and the other
transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization,
execution and delivery of this Agreement by Parent and Merger Subs, constitutes a valid and binding agreement of the Company (assuming
due authorization, execution and delivery by Parent and Merger Subs), enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting
creditors’ rights and to general equity principles regardless of whether such enforceability is considered in a proceeding in equity
or at law (the “Bankruptcy and Equity Exception”).
(ii) The
Special Committee has unanimously (A) determined that this Agreement and the transactions contemplated hereby, including the
Mergers, are fair to, and in the best interests of, the Company and the Unaffiliated Stockholders, (B) recommended that the
Company Board approve and declare advisable this Agreement and the transactions contemplated hereby, including the Mergers, and
determined that this Agreement and the transactions contemplated hereby, including the Mergers, are fair to, and in the best
interests of, the Company and the Unaffiliated Stockholders, and (C) recommended that, subject to Company Board approval,
the Company Board submit this Agreement to the stockholders of the Company for their adoption and recommend that the stockholders of
the Company vote in favor of the adoption of this Agreement;
(iii)
The Company Board (acting on the recommendation of the Special Committee) has by unanimous vote (A) determined that this
Agreement, the Support Agreement and the transactions contemplated hereby, including the Mergers, are fair to, and in the best interests
of, the Company and its stockholders, including the Unaffiliated Stockholders, (B) approved and declared advisable this Agreement
and the transactions contemplated hereby, including the Mergers, (C) approved the execution and delivery of this Agreement by
the Company, the performance by the Company of its covenants and other obligations contained herein and the consummation of the Mergers
and the other transactions contemplated by this Agreement upon the terms and subject to the conditions contained herein, (D) directed
that the adoption of this Agreement be submitted to a vote of the stockholders of the Company at a meeting of the stockholders of the
Company, and (E) recommended that the stockholders of the Company vote in favor of the adoption of this Agreement (the “Company
Recommendation”), which Company Recommendation has not been withdrawn, rescinded or modified in any way as of the date hereof.
(d)
Governmental Filings; No Violations.
(i) The
execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement require no authorization or other action by or in respect of, or filing with, any
(A) federal, state, local, municipal, foreign or other government; (B) governmental, quasi-governmental,
supranational or regulatory authority (including any governmental division, department, agency, commission, instrumentality,
organization, unit or body and any court or other tribunal); (C) regulatory or self-regulatory organization (including the SEC,
FINRA, Nasdaq and any other Exchange); or (D) arbitral tribunal (public or private) (each, a “Governmental
Authority”) other than (1) the filing of the Certificate of Merger and all necessary other documentation with
the Secretary of State of the State of Delaware, (2) compliance with any applicable requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR
Act”), (3) compliance with any applicable requirements of any other Antitrust Laws set forth on Section 5.1(d)(i)
of the Company Disclosure Schedule, (4) compliance with any applicable requirements of any applicable foreign Governmental
Authority as set forth on Section 5.1(d)(i) of the Company Disclosure Schedule, (5) compliance with any
applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the
Securities Act of 1933, as amended (the “Securities Act”) and any other applicable U.S. state or federal
securities, takeover or “blue sky” Laws, (6) compliance with any applicable rules of the Nasdaq, (7) the
FINRA Approvals and the State BD Approvals, (8) approvals of, or notice filings required by, applicable state mortgage licensing
Laws with respect to a change in ownership or control of each Subsidiary of the Company that is licensed as a mortgage broker,
lender or similar entity under applicable state Laws, (9) approvals of, or notice filings required by, applicable state insurance
regulators with respect to a change in ownership or control of each Subsidiary of the Company that is licensed as an insurance
agent, broker or producer under applicable state Laws, and (10) where failure to obtain such authorization or take any such
action would not reasonably be expected to (x) have, individually or in the aggregate, a Material Adverse Effect or
(y) prevent or materially delay the consummation of the Mergers or any of the other transactions contemplated by this
Agreement.
(ii)
The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement do not and will not (A) assuming compliance with the matters referred to in Section 5.1(d)(i),
conflict with or result in any violation or breach of any provision of the certificate of incorporation or bylaws of the Company or the
similar organizational documents of any of its Subsidiaries, (B) assuming compliance with the matters referred to in Section 5.1(d)(i),
conflict with or result in a violation or breach of any applicable Law, (C) assuming compliance with the matters referred to in
Section 5.1(d)(i) and the Permitted Holders (as defined in the Existing Credit Document) having the right or the ability by
voting power, contract, or otherwise to elect or designate for election at least a majority of the board of directors of Focus LLC (or
the Parent Entity (as defined in the Existing Credit Document), if applicable), upon the consummation by the Company of the transactions
contemplated by this Agreement, other than the consents described in Section 6.19, require any consent by any Person under, constitute
a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the
termination, cancellation or acceleration of any right or obligation or the loss of any benefit to which the Company and any of its Subsidiaries
are entitled, under any agreement, lease, license, contract, note, bond, mortgage, indenture, arrangement or other obligation (excluding
any Benefits Plan) (each a “Contract”) binding upon the Company or any of its Subsidiaries, or to which any
of their respective properties, rights or other assets are subject or (D) result in the creation of a Lien (other than Permitted
Liens) on any of the properties or assets (including intangible assets) of the Company or any of its Subsidiaries, except in the case
of clause (B), clause (C) and clause (D), any such violation, breach, conflict, default, termination, acceleration, cancellation
or loss that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(e)
Company Reports; Financial Statements; Internal Controls.
(i) The
Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents
required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since February 17, 2022 (the
“Applicable Date”) (the forms, statements, certifications, reports and documents filed or furnished to the
SEC since the Applicable Date and those filed or furnished to the SEC subsequent to the date of this Agreement, including any
amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or
being furnished (and, if amended, as of the date of such amendment), complied in all material respects or, if not yet filed or
furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the
Sarbanes-Oxley Act of 2002 and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their
respective dates (and, if amended, as of the date of each such amendment), the Company Reports did not, and any of the Company
Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances in which they were made, not misleading. As of the date of this Agreement, (A) there are no
outstanding or unresolved comments in comment letters with respect to the Company Reports received by the Company from the SEC staff
and (B) the Company is in compliance in all material respects with the applicable listing and corporate governance
requirements of Nasdaq.
(ii)
The Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e) or 15d-15(e), as applicable, under the Exchange
Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure
that information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the rules of the SEC. The Company maintains a system of internal
controls over financial reporting (as defined in Rule 13a-15(f) or 15d-15(f), as applicable, under the Exchange Act) reasonably designed
to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of financial
statements for external purposes in accordance with U.S. GAAP, including policies and procedures that (A) pertain to the maintenance
of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (B) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S.
GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management of the Company
and the Company Board and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the assets of the Company that could have a material effect on its financial statements. As of the date hereof,
the Company has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to
the date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (x) any significant deficiencies
or material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely
affect in any material respect the Company’s ability to record, process, summarize and report financial information or (y) any
fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
controls over financial reporting. For purposes of this Agreement, the terms “significant deficiency” and “material
weakness” have the meanings assigned to such terms in Auditing Standard No. 5 of the Public Company Accounting Oversight Board,
as in effect on the date of this Agreement.
(iii)
There are no off-balance sheet arrangements of any type required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated
under the Securities Act that have not been so described in the Company Reports.
(iv)
The consolidated financial statements included in or incorporated by reference into the Company Reports (including the related
notes and schedules) fairly present, or, in the case of consolidated financial statements included in or incorporated by reference into
the Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated
financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof and their consolidated statements
of operations, comprehensive income, Company stockholders’ equity and cash flows for the respective periods set forth therein (subject,
in the case of unaudited statements, to notes and normal year-end audit adjustments), in each case in conformity with U.S. GAAP (except,
in the case of the unaudited statements, subject to normal and recurring year-end adjustments) applied on a consistent basis during the
periods involved, except as may be noted therein or in the notes thereto.
(f)
Liabilities. There are no obligations or liabilities of the Company or any of its Subsidiaries (whether accrued,
contingent or otherwise) that would be required by U.S. GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries,
other than (i) obligations or liabilities to the extent disclosed, reflected or reserved against in the consolidated balance sheet
of the Company for the year ended December 31, 2022 (or any notes thereto); (ii) obligations or liabilities arising in connection
with the transactions contemplated by this Agreement; (iii) obligations or liabilities incurred in the ordinary course of business
since December 31, 2022; (iv) executory obligations arising from any Contract entered into in the ordinary course of business
(none of which results from or was caused by a breach of any such Contract); and (v) obligations or liabilities that have not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(g)
Absence of Certain Changes.
(i)
Since December 31, 2022 through the date of this Agreement, (A) the Company and its Subsidiaries have, except in connection
with the Company’s sale process, this Agreement and the transactions contemplated hereby, conducted their businesses in all material
respects in the ordinary course of business and (B) there has not been any action taken by the Company or event that would have
required the consent of Parent pursuant to Sections 6.1(b)(ii), 6.1(b)(v), 6.1(b)(ix), 6.1(b)(xi), 6.1(b)(xvii),
6.1(b)(xxii) or 6.1(b)(xxvii) (to the extent related to any of the foregoing) had such action or event occurred after the
date of this Agreement.
(ii)
Since December 31, 2022, there has not been any change, effect, occurrence, event or development that has had or would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
(h)
Litigation.
(i)
Since January 1, 2020, no civil, criminal or administrative actions, suits, claims, charges, complaints, hearings, arbitrations,
investigations, enforcement actions, disciplinary actions, Orders, examinations, inquiries or proceedings before any Governmental Authority
(each, an “Action”) have been commenced to which the Company or any of its Subsidiaries is a party and no Action
has been commenced by any Governmental Authority against or involving the Company or its Subsidiaries or any of their respective assets
or properties or directors or officers (in the case of the directors or officers, which relates to the business of the Company or applicable
Subsidiary), in each case that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
or would reasonably be expected to prevent or materially delay the consummation of the Mergers or any of the other transactions contemplated
by this Agreement.
(ii) There
are no pending or, to the Knowledge of the Company, threatened Actions to which the Company or any of its Subsidiaries is a party
and there are no pending or, to the Knowledge of the Company, threatened Actions by any Governmental Authority against or involving
the Company or its Subsidiaries or any of their respective assets or properties or directors or officers (in the case of the
directors or officers, which relates to the business of the Company or applicable Subsidiary), in each case that has had or would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or would reasonably be expected to
prevent or materially delay the consummation of the Mergers or any of the other transactions contemplated by this Agreement.
(iii)
None of the Company or any Subsidiary is subject to any outstanding judgment, Order, writ, injunction, decree or award of any Governmental
Authority, except for those that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or would not reasonably be expected to prevent or materially delay the consummation of the Mergers or any of the other
transactions contemplated by this Agreement.
(i)
Employee Benefits.
(i)
Section 5.1(i)(i) of the Company Disclosure Schedule sets forth an accurate and complete list, as of the date of this
Agreement, of all material Benefit Plans sponsored, maintained or contributed to by the Employer Entities. For purposes of this Agreement,
“Benefit Plans” means all benefit and compensation plans, contracts, policies, agreements or arrangements that
are sponsored, maintained, contributed to or required to be contributed to by the Company or any of its Subsidiaries, including any of
the Employer Entities, and covering current or former employees of any such entities, current or former officers of any such entities,
current or former directors of any such entities, and current or former consultants of any such entities who are natural persons (each,
a “Service Provider”), or under or with respect to which the Company or any of its Subsidiaries, including any
of the Employer Entities, have any current or contingent liability or obligation (including on account of an ERISA Affiliate), in each
case including “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, the Company Equity Plan and all other employment,
consulting (to the extent related to a natural person), retirement, termination or change in control or transaction agreements, supplemental
retirement, profit sharing, deferred compensation, severance, separation pay, stock option, stock purchase, stock appreciation rights,
restricted stock unit, stock-based incentive, bonus, commissions, retention, insurance, medical, welfare, fringe or other plans, contracts,
policies or arrangements providing for benefits or remuneration of any kind. With respect to each material Benefit Plan listed on Section 5.1(i)(i)
of the Company Disclosure Schedule, the Company has provided or made available to Parent, to the extent applicable, true and complete
copies of (A) the current plan document and all material amendments thereto, (B) any related trust agreements, insurance
contracts or other funding arrangements, (C) the most recent audited financial statements and actuarial or other valuation report
prepared with respect thereto, if any, (D) the most recent annual reports on Form 5500 required to be filed with the Internal
Revenue Service (the “IRS”) with respect thereto, (E) the most recent IRS determination or opinion letter
and (F) all non-routine material correspondence with any Governmental Authority within the last three years.
(ii) (A)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
all Benefit Plans, other than “multiemployer plans” within the meaning of Section 3(37) of ERISA (each, a
“Multiemployer Plan”), are and have been established, maintained, funded, operated and administered, in
accordance with their terms and in compliance with ERISA, the Code and other applicable Laws; (B) each Benefit Plan listed on
Section 5.1(i)(i) of the Company Disclosure Schedule that is intended to be qualified under Section 401(a) of the Code has
received a favorable determination or opinion letter from the IRS or has applied to the IRS for such favorable determination or
opinion letter within the applicable remedial amendment period under Section 401(b) of the Code, and, to the Knowledge of the
Company, there are no circumstances reasonably expected to adversely affect the qualification of such plan under Section 401(a)
of the Code and (C) to Knowledge of the Company, each Benefit Plan not listed on Section 5.1(i)(i) of the Company Disclosure
Schedule that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion
letter from the IRS or has applied to the IRS for such favorable determination or opinion letter within the applicable remedial
amendment period under Section 401(b) of the Code, and, to the Knowledge of the Company, there are no circumstances reasonably
expected to adversely affect the qualification of such plan under Section 401(a) of the Code.
(iii)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
there are no pending or, to the Knowledge of the Company, threatened Actions, audits, investigations, claims (other than routine claims
for benefits) or proceedings, including by a Governmental Authority, by, on behalf of, against or relating to any Benefit Plan. Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the
Company or any of its Subsidiaries or any of the Employer Entities has incurred (whether or not assessed),or is reasonably expected to
incur or be subject to, any Tax or penalty under Section 4975, 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(iv)
No Benefit Plan is a Multiemployer Plan or any plan subject to Title IV or Section 302 of ERISA or Section 412 of the
Code, and neither the Company nor any of the Employer Entities has any current or contingent liability or obligation under or with respect
to such plans, including on account of any ERISA Affiliate. No Benefit Plan sponsored, maintained or contributed to by any of the Employer
Entities is, and, to the Knowledge of the Company, no other Benefit Plan is, a “multiple employer welfare arrangement” (as
defined in Section 3(40) of ERISA), a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c)
of the Code) or a plan or arrangement that provides post-employment, post-ownership, post-service or retiree health, life or other welfare
benefits to any Person other than as required under Section 4980B of the Code or applicable Law for which the recipient pays the
full cost of coverage.
(v) Neither
the execution of this Agreement, stockholder or other approval of this Agreement nor the consummation of the Mergers or any other
transactions contemplated hereby could, whether alone or in combination with another event, (A) entitle any current or
former employee or other current or former Service Provider of the Employer Entities or, to the Knowledge of the Company, of the
Company or any other Subsidiaries of the Company, in each case of the foregoing to severance pay or any other payment or benefit or
any increase in severance pay upon any termination of employment after the date of this Agreement, (B) accelerate the time
of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under,
increase the amount payable or result in any other obligation pursuant to any of the Benefit Plans listed on Section 5.1(i)(i)
of the Company Disclosure Schedule or, to the Knowledge of the Company, any Benefit Plan that is not listed on Section 5.1(i)(i)
of the Company Disclosure Schedule, (C) limit or restrict the right of any Employer Entities or, to the Knowledge of the
Company, the Company or any other Subsidiaries of the Company, to amend or terminate any Benefit Plan or (D) result in any
payment (whether in cash or property or the vesting of property) that would reasonably be expected to, individually or in
combination with any other such payment, constitute an “excess parachute payment” (within the meaning of
Section 280G of the Code) to any current or former employee or other current or former Service Provider of the Employer
Entities or, to the Knowledge of the Company, of any other Subsidiaries of the Company.
(vi)
Without limiting the generality of the foregoing, except as has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (A) each Benefit Plan maintained on behalf of current or former directors, officers,
managers, employees or other Service Providers who reside or work primarily outside of the United States (each, an “International
Plan”) required by any applicable Law to be registered or approved by a Governmental Authority has been so registered or
approved and has been maintained in good standing with the applicable Governmental Authority and (B) no unfunded or underfunded
liabilities exist with respect to any International Plan. No International Plan is a “defined benefit plan” (as defined in
ERISA, whether or not subject to ERISA) or similar plan or arrangement.
(j)
Compliance with Laws; Company Permits.
(i)
Compliance with Laws. Except as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, since January 1, 2020 (A) the businesses of each of the Company and its Subsidiaries have
been, and are being, conducted in compliance with applicable federal, state, local, territorial, provincial, municipal, regional, foreign
or supranational laws, acts, statutes, codes, Orders, treaties and ordinances, common law, and any rules, rulings, regulations, standards,
judgments, Orders, writs, injunctions, decrees, awards, arbitration awards and agency requirements of any Governmental Authority (collectively,
“Laws”) and (B) neither the Company nor any of its Subsidiaries has received any written notice or written
communication, or to the Knowledge of the Company, oral notice or oral communication, from any Governmental Authority that the Company,
such Subsidiary or any of their respective director or officer, as applicable, is not in compliance with any applicable Law related to
the business of the Company or its applicable Subsidiary or that the Company, such Subsidiary or any of their respective director or officer,
as applicable, is under investigation by any Governmental Authority for potential non-compliance with any applicable Law relating to the
business of the Company or applicable Subsidiary, in each case, that has not been cured as of the date of this Agreement.
(ii) Permits.
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
the Company and its Subsidiaries hold all permits, licenses, certifications, approvals, registrations, identification numbers,
consents, authorizations, franchises, variances, exemptions, certificates, qualifications, grants of membership and Orders
(including all product certifications) issued or granted by any Governmental Authority (the “Company
Permits”) required or necessary for the Company and its Subsidiaries to use, own, occupy and operate their assets and
conduct the business of the Company and its Subsidiaries. Except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, (A) the Company Permits are in full force and effect, (B) no written
notice has been received by the Company or any of its Subsidiaries regarding any (x) violation of, or failure to comply with, any
term or requirement of any Company Permit or (y) of revocation, cancellation, suspension, invalidation or termination of or refusal
to renew any Company Permit, (C) there is no Action pending, or, to the Knowledge of the Company, threatened that seeks to, or, to
the Knowledge of the Company, any existing condition, situation or set of circumstances that would reasonably be expected to result
in, the revocation, cancellation, termination, suspension, non-renewal or adverse modification of any Company Permit and (D) no
application or notice relating to a Company Permit, including in respect of any individual authorizations required by a Governmental
Authority in respect of a director, officer, employee, contractor or agent of the Company or its Subsidiaries, has been refused nor
has there been an indication that it would be refused if not withdrawn.
(iii)
International Trade. Except as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, neither the Company nor any of its officers or directors, nor to the Knowledge of the Company, any
of its Subsidiaries, employees, any agent or other third-party Representative acting on behalf of the Company or any of its Subsidiaries,
is currently, or have in the last five years: (A) been a Sanctioned Person, (B) engaged in any dealings or transactions
with or for the benefit of any Sanctioned Person or in any Sanctioned Country, (C) made or accepted any unlawful payment or given,
received, offered, promised, or authorized or agreed to give or receive, any money, advantage or thing of value, directly or indirectly,
to or from any employee or official of any Governmental Authority or any other Person in violation of Anti-Corruption Laws, or (D) otherwise
been in violation of Sanctions, Ex-Im Laws, or U.S. anti-boycott Laws (collectively, “Trade Controls”) or any
Anti-Corruption Laws.
(iv)
Anti-Corruption. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, neither the Company nor any of its Subsidiaries have received from any Governmental Authority or any Person
any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to a Governmental Authority; or
conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing in each case, related to Trade
Controls or Anti-Corruption Laws. The Company and its Subsidiaries have implemented, maintain in effect and enforce written policies,
procedures and internal controls, including an internal accounting controls system, that are reasonably designed to prevent, deter and
detect violations of applicable Trade Controls and Anti-Corruption Laws.
(v) Insurance
Contract. Since January 1, 2020, each insurance agent, producer or broker employed by the Company or a Subsidiary of the
Company at the time of soliciting, selling, negotiating or producing any insurance contract on behalf of the Company or any such
Subsidiary, to the extent required by applicable Law, was, with respect to such insurance agent, producer or broker employed by a
Subsidiary, duly appointed by the applicable insurance carrier, and was duly licensed as an insurance agent, broker or producer for
the type of insurance contracts solicited, sold, negotiated or produced by such insurance agent, producer or broker, in each case,
in the particular state in which such insurance agent, producer or broker solicited, sold, negotiated or produced such insurance
contract, in each case, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Since January 1, 2020, to the extent required under applicable Law (including any state insurance Law),
each applicable Subsidiary of the Company currently designates a designated responsible licensed producer in each jurisdiction where
they hold an insurance agent, broker or producer license in each case, except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. Each officer or employee of the Company who serves as the
designated responsible licensed producer thereof holds all insurance agent, broker or producer licenses required for serving in such
role in each case, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(k)
Material Contracts.
(i)
Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the date
of this Agreement, any Benefit Plan set forth in Section 5.1(i)(i) of the Company Disclosure Schedule, or as set forth in
Section 5.1(k)(i) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its
Subsidiaries is a party to or bound by any Contract described by clause (A) through clause (I) of this Section 5.1(k)(i),
including Contracts and all amendments and modifications thereto filed or required to be filed as exhibits to the Company Reports (a “Material
Contract”):
(A)
that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(B)
that contains any noncompete or exclusivity provisions to which the Company or any of its Subsidiaries is subject that would, after
the Company Merger Effective Time, materially restrict the ability of Parent or any of its Subsidiaries (other than the Company or any
of its Subsidiaries) to compete in any line of business or geographic area;
(C)
that provides for a material partnership, joint venture, collaboration or similar material arrangement (other than agreement entered
into between the Company or any its Subsidiaries, on the one hand, and another Subsidiary of the Company, on the other hand);
(D)
that is (1) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement
providing for or guaranteeing Indebtedness of any Person in excess of $1.5 million, except for any Contract solely among or between the
Company and any of its wholly-owned Subsidiaries, or (2) a hedging, derivative, swaps or other similar Contract;
(E)
that relates to a closed acquisition or disposition of any Person, business, assets (other than client lists) or real property
(whether by merger, sale of stock, sale of assets or otherwise) and includes a deferred payment obligation (not including “earnouts”
or other contingent payments) of the Company and its Subsidiaries in excess of $500,000 that has not been satisfied in full;
(F) that
is a settlement agreement that (1) requires payment by the Company or any of its Subsidiaries after the date hereof in
excess of $500,000 or (2) imposes non-monetary obligations or restrictions on the Company or any of its Subsidiaries after
the date of this Agreement which obligations or restrictions would apply to Parent or its Affiliates (including the Company and its
Subsidiaries) following the Closing;
(G)
relating to a pending acquisition or disposition of any Person, business, assets or real property (whether by merger, sale of stock,
sale of assets or otherwise) with an executed letter of intent or acquisition or disposition agreement and having an upfront purchase
price in excess of $10 million;
(H)
(1) pursuant to which the Company licenses or grants rights to any Person, or licenses or receives a grant of right from any Person
with respect to any material Intellectual Property Right (other than non-exclusive licenses for commercially available off-the-shelf software
licensed or procured for aggregate fees of $1 million or less), (2) pursuant to which a Person has developed or been engaged to develop
any material Intellectual Property Rights for the Company (other than Contracts with employees or independent contractors pursuant to
which Intellectual Property Rights are assigned to the Company on standard forms of agreement entered into in the ordinary course of business),
or (3) entered into to settle or resolve any material Intellectual Property Right-related dispute or otherwise affecting the Company’s
or any of its Subsidiaries right to use or enforce any material Owned IP, including settlement agreements, coexistence agreements, covenant
not to sue agreements, and consent to use agreements; or
(I)
that is a management agreement between one or more Subsidiaries of the Company and one or more management companies (including
any principals of any such management company) (a “Management Agreement”) (i) pursuant to which management services
are provided to such Company Subsidiary and (ii) that was one of the top 20 largest sources of revenue for the Company and its Subsidiaries,
based on the amounts paid or payable pursuant to such Management Agreement during the 2022 fiscal year.
(ii)
The Company has made available to Parent prior to the date of this Agreement accurate and complete copies of all written Material
Contracts required to be identified in Section 5.1(k)(i) of the Company Disclosure Schedule, including all amendments thereto,
as in effect as of the date of this Agreement.
(iii) As
of the date of this Agreement, except as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, each Material Contract is a valid and binding agreement of the Company or any of its
Subsidiaries party thereto, enforceable against the Company or any of its Subsidiaries and, to the Knowledge of the Company, each
other party thereto in accordance with its terms, and is in full force and effect, subject in each case to the Bankruptcy and Equity
Exception (and subject to the termination or expiration of any such Material Contract after the date of this Agreement in accordance
with its terms). Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, neither the Company nor any of its Subsidiaries and, to the Knowledge of the Company, as of the date of this
Agreement, no other party thereto is (or with or without notice or lapse of time would be) in default or breach under the terms of
any such Material Contract and no event has occurred (with respect to defaults or breaches by any other party thereto, to the
Knowledge of the Company, as of the date of this Agreement) that (with or without notice or lapse of time) will, or would reasonably
be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity
or performance of any Material Contract or (C) give any Person the right to cancel, terminate or modify in a manner adverse
to the Company any Material Contract.
(l)
Real Property.
(i)
Title to Real Property; Liens.
(A)
Leased Real Property. Except as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (1) the Company or its applicable Subsidiary has a valid leasehold interest in all Leased Real Property that is
material to the Company and its Subsidiaries, taken as a whole, free and clear of all Liens, except Permitted Liens; (2) there
exists no default or event of default under any of the Real Property Leases that are material to the Company and its Subsidiaries, taken
as a whole, (or any event that with notice or lapse of time or both would become a default) on the part of the Company or any of its Subsidiaries
(as applicable) or, to the Knowledge of the Company, as of the date of this Agreement, any other party thereto and (3) the Company
or its applicable Subsidiary has not subleased, licensed, or otherwise granted any Person the right to use or occupy any Leased Real Property
that is material to the Company and its Subsidiaries, taken as a whole, or any portion thereof;
(B)
Owned Real Property. No real property is owned by the Company as of the date of this Agreement.
(m)
Takeover Statutes. Assuming the accuracy of the representations and warranties of Parent and Merger Subs made in
Section 5.2(f), the restrictions of Section 203 of the DGCL or of any “fair price,” “moratorium,”
“control share acquisition,” “business combination” or other similar anti-takeover Law (each, a “Takeover
Law”) or any anti-takeover provision in the Company’s certificate of incorporation or bylaws (including, for the avoidance
of doubt, Article Tenth of the Company’s certificate of incorporation) shall not apply to the Company, Parent, Merger Subs, the
Rollover Stockholders, the shares of Company Stock, this Agreement, the Support Agreement, the Mergers or any other transactions contemplated
by this Agreement. There is no stockholder rights plan or “poison pill” anti-takeover plan in effect to which the Company
or any of its Subsidiaries is subject, party to or otherwise bound. The Company Board or the Special Committee has adopted such resolutions
and taken all actions so that Parent and the Rollover Stockholders will not be prohibited from entering into or consummating a “business
combination” with the Company as an “interested stockholder” (in each case as such term is used in the Company’s
certificate of incorporation) as a result of the execution of this Agreement, the Support Agreement, the Mergers or the consummation of
the other transactions in the manner contemplated by this Agreement.
(n) Environmental
Matters. Each of the Company and its Subsidiaries is, and since January 1, 2020, has been, in compliance with all applicable
Environmental Laws, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Each of the Company and its Subsidiaries possesses and maintains, and is, and since January 1, 2020 has
been, in compliance with all Company Permits required under Environmental Laws, other than as has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries
have received any written claim, notice of violation, citation, directive, Order, report or other information since January 1, 2020
concerning any actual violation or alleged violation of, or liability under, any Environmental Law except for matters that have not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no
Actions, suits or proceedings pending or, to the Knowledge of the Company, threatened concerning compliance by the Company or any of
its Subsidiaries with, or liability of the Company or any of its Subsidiaries under, any Environmental Law except for matters that
have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the
Company nor any Subsidiary is subject to any Order, decree, injunction or other binding agreement with any Person (including any
Governmental Authority) concerning liability or obligations under any Environmental Law that would result in liabilities under
applicable Environmental Laws, other than as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have treated, stored disposed of, arranged for
or permitted the disposal of, transported, handled, manufactured, distributed, sold, exposed any Person to or released any Hazardous
Substances, or owned or operated any property or facility which is or has been contaminated by any Hazardous Substances, in each
case as would require the Company or its Subsidiaries to report, investigate, remediate, correct (or otherwise respond to), or
result in liabilities under Environmental Laws, other than as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have assumed,
undertaken, provided an indemnity with respect to or, to the Knowledge of the Company, otherwise become subject to any liability of
any other Person relating to Environmental Laws or Hazardous Substances, other than as has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has furnished to Parent all environmental
audits, assessments and reports and other material environmental, health or safety documents relating to the current or former
properties, facilities or operations of the Company and any of its Subsidiaries, in each case which are in the possession or under
the reasonable control of the Company.
(o)
Taxes. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect:
(i)
The Company and each of its Subsidiaries (A) has duly and timely filed (taking into account any valid extension of time
within which to file) all Tax Returns required to be filed by it, and each such filed Tax Returns is true, correct and complete, (B) has
paid all Taxes that are required to be paid by it (whether or not shown as due on such Tax Returns) and (C) has complied with
all applicable Laws relating to the payment, collection, withholding and remittance of Taxes by it and related information reporting requirements
with respect to amounts owing to or from any of its employees, creditors, customers, or other third parties. The most recent financial
statements contained in the Company Reports reflect an adequate reserve (in accordance with GAAP) for all Taxes accrued but not then payable
by the Company and its Subsidiaries through the date of such financial statements.
(ii)
There are no Tax Liens upon any property or assets of the Company or any of its Subsidiaries except for Permitted Liens described
in clause (a) of the definition thereof.
(iii)
No deficiency for any amount of Taxes has been proposed or asserted in writing or assessed by any Governmental Authority against
the Company or any of its Subsidiaries that remains unpaid or unresolved in whole or in part.
(iv)
(A) There are no audits, suits, claims, examinations, investigations, or other proceedings in respect of Taxes or Tax matters
pending or threatened in writing against the Company or any of its Subsidiaries and (B) with respect to any Tax years open for
audit as of the date hereof, neither the Company nor any of its Subsidiaries has granted any waiver of any statute of limitations with
respect to, or any extension of a period for the assessment of, any Tax, other than any such waiver or extension that is automatic or
automatically granted.
(v)
Neither the Company nor any Subsidiary (A) has any liability for the payment of any Tax imposed on any other Person (other
than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 or any analogous or similar provision of
U.S. state or local or non-U.S. Tax Law; (B) has liability as a transferee, successor or otherwise by operation of Law for Taxes
of any other Person (other than the Company or any of its Subsidiaries) or (C) is a party to any Tax sharing, allocation or indemnification
agreement other than (1) any agreement or arrangement solely among the Company and its Subsidiaries, or (2) any Tax sharing
or indemnification provisions contained in any agreement entered into in the ordinary course of business and not primarily relating to
Tax.
(vi)
In the last two years, neither the Company nor any of its Subsidiaries has been either a “distributing corporation”
or a “controlled corporation” in a transaction purported or intended to qualify for tax-free treatment under Section 355(a)
of the Code (or any similar provision of U.S. state, or local Law).
(vii)
Neither the Company nor any of its Subsidiaries has “participated” in a “listed transaction” within the
meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state, or local Law).
(viii)
No written claim has been made within the past three (3) years by a Governmental Authority in a jurisdiction where the Company
or any of its Subsidiaries does not file Tax Returns or pay Taxes that the Company or any of its Subsidiaries is or may become subject
to taxation, or required to file any Tax Return in, that jurisdiction.
(ix)
There are no adjustments under Section 481 of the Code (or any analogous or similar provision of U.S. state, or local or non-U.S.
Tax Law) that are required to be taken into account by the Company or any of its Subsidiaries in any taxable period (or portion thereof)
ending after the Closing Date by reason of a change in method of accounting in any taxable period (or portion thereof) ending on or before
the Closing Date.
(x)
For U.S. federal income tax purposes, (A) the Company is and has since formation been properly classified as a corporation and
(B) each of Focus LLC and Focus Operating, LLC is properly classified as a partnership and since formation has been properly classified
as a partnership or a disregarded entity. No election is pending to change any such classification.
(p)
Labor Matters.
(i)
The Company and its Subsidiaries are neither party to, nor bound by, any Contract that is a collective bargaining agreement or
other Contract with any labor union, works council or similar labor organization representing employees (each a “Labor Agreement”)
and no employees of the Company or any of its Subsidiaries are represented by any labor union, works council, or similar labor organization.
Since January 1, 2020, no labor union, works council, other similar labor organization, or group of employees of the Company or any of
its Subsidiaries has made a demand for recognition or certification of a labor union or other labor organization as the collective bargaining
representative of any employees of the Company or its Subsidiaries, and there are no representation or certification proceedings presently
pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor
relations tribunal or authority with respect to such employees. To the Knowledge of the Company, since January 1, 2020, there have been
no labor organizing activities with respect to employees of the Company or any of its Subsidiaries. Since January 1, 2020, there have
been no unfair labor practice charges, material labor grievances, labor arbitrations, strikes, slowdowns, work stoppages, picketing, handbilling,
lockouts or other material labor disputes pending or, to the Knowledge of the Company, threatened against or affecting the Company or
any of its Subsidiaries. With respect to the transactions contemplated by this Agreement, the Company and its Subsidiaries have satisfied
in all material respects any notice, consultation or bargaining obligations owed to their employees or their employees’ representatives
under applicable Law, Labor Agreement or other Contract.
(ii)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
the Company and its Subsidiaries are, and since January 1, 2020, have been, in compliance with all applicable Laws respecting labor, employment
and fair employment practices (including equal employment opportunity Laws), including all Laws respecting terms and conditions of employment,
occupational safety and health, wages and hours (including the classification of independent contractors and exempt and non-exempt employees),
immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), harassment, discrimination,
retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs (including the Worker Adjustment
and Retraining Notification Act of 1988, as amended, or any similar Laws (“WARN Act”)), employee trainings and
notices, workers’ compensation, labor relations, employee leave issues, COVID-19, affirmative action, shifts organization (including
meal and rest breaks), overtime and unemployment insurance.
(iii)
Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and
its Subsidiaries have investigated all sexual harassment or other discrimination or retaliation allegations that have been reported through
the Company’s or any Subsidiary’s complaint procedures or of which the Company has Knowledge. With respect to each such allegation
with potential merit, the Company and its Subsidiaries have taken corrective action that is reasonably calculated to prevent further improper
action. The Company and its Subsidiaries are not aware of allegations relating to officers, directors, employees, contractors, or agents
of the Company and its Subsidiaries, that, if known to the public, would reasonably be expected to have a Material Adverse Effect.
(iv)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
to the Knowledge of the Company, no current or former officer, principal, manager, employee, or independent contractor of the Company
or any of its Subsidiaries is in any respect in violation of any term of any nondisclosure agreement or obligation, noncompetition agreement,
nonsolicitation agreement or restrictive covenant obligation (A) owed to the Company or any of its Subsidiaries or (B) owed to any third
party with respect to such person’s right to be employed or engaged by the Company or any of its Subsidiaries. Except as has not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2020,
there has been no (1) claim by or on behalf of any current or former officer, principal, manager, employee or independent contractor of
the Company or any of its Subsidiaries or pending or, to the Knowledge of the Company, threatened asserting that any such obligation to
the Company or any of its Subsidiaries is unenforceable, or (2) Order ruling that any such obligation to the Company or any of its Subsidiaries
is unenforceable.
(q)
Intellectual Property.
(i)
Section 5.1(q)(i) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date hereof, of
all Registered Intellectual Property. Except as has not had, individually or in the aggregate, a Material Adverse Effect, to the Knowledge
of the Company, all items of material Registered Intellectual Property and material Owned IP are exclusively owned by the Company or a
Subsidiary thereof, as applicable, and the Company or a Subsidiary thereof has a valid and sufficient license to all material Business
IP, in each case, free and clear of all Liens other than Permitted Liens, and to the extent issued or registered, all such Registered
Intellectual Property is subsisting and, to the Knowledge of the Company, valid and enforceable. Except as has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and to the Knowledge of the Company, the
Company and its Subsidiaries have taken commercially reasonable steps to protect and preserve the rights of the Company and its Subsidiaries
in its confidential information, confidential proprietary information, including financial and business information and client Protected
Information (“Confidential Information”) and trade secrets that they reasonably wish to protect and preserve.
(ii)
To the Knowledge of the Company, the Company and its Subsidiaries (A) have not since January 1, 2020 infringed, misappropriated
or otherwise violated, and do not currently infringe, misappropriate or otherwise violate, the Intellectual Property Rights of any third
party or (B) are not party to any Action alleging, and have not since January 1, 2020, sent or received any written notices of
any infringement or misappropriation with, any Intellectual Property Rights by, from or to any third party, except as has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Action is or, since January
1, 2020, has been pending or threatened in writing that challenges the legality, validity, enforceability, use or ownership of any Intellectual
Property Rights owned by the Company or any of its Subsidiaries, except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Since January 1, 2020, to the Knowledge of the Company, no Person has infringed,
misappropriated or otherwise violated or currently infringes, misappropriates or otherwise violates any Intellectual Property Rights owned
by the Company or any of its Subsidiaries, except as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(iii)
Except as (x) has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, or (y) as set forth in Section 5.1(q)(iii) of the Company Disclosure Schedule, the Company is, and its Subsidiaries are, and have
since January 1, 2020 been, in compliance with the Company’s and its Subsidiaries’ policies, Contracts (to the extent relating
to data privacy or data security), and all applicable Laws relating to data privacy or data security (“Data Security Requirements”).
To the Knowledge of the Company, since January 1, 2020, except as (i) has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, or (ii) as set forth in Section 5.1(q)(iii) of the Company Disclosure Schedule, there
has been no unauthorized access or Processing of or to any Company System, or any unauthorized use, disclosure, losses or theft of, or
security breaches relating to, Protected Information received, or transmitted, by, or in the possession, custody or control of any the
Company or its commercial clients (“Security Incident”). Except as (A) has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect, or (B) as set forth in Section 5.1(q)(iii) of the Company
Disclosure Schedule: (A) Since January 1, 2020, the Company and its Subsidiaries have not (and have not been required to) notified any
Person of any Security Incident; (B) To the Knowledge of the Company, the transactions contemplated by this Agreement do not and will
not violate or breach any Data Security Requirement; (C) The Company and its Subsidiaries maintain commercially reasonable policies, procedures
and rules regarding data Processing, privacy, protection, and security; (D) The Company Systems are sufficient for the current operations
of the business of the Company and its Subsidiaries; and (E) The Company and its Subsidiaries have: (1) taken commercially reasonable
measures to protect the integrity of the Company Systems, and (2) implemented, maintained, and tested commercially reasonable disaster
recovery procedures for the business and all data material to the business of the Company or any of its Subsidiaries have been regularly
backed-up in an encrypted manner and tested for restoration.
(iv)
The Company and each of its Subsidiaries have taken commercially reasonable steps to protect, preserve and maintain the Owned IP,
except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the
Knowledge of the Company, no trade secrets or Confidential Information included in the Owned IP has been Processed (or authorized to be
Processed) by or to any third party other than pursuant to a written confidentiality agreement entered into in the ordinary course of
business. Each Person that has had or currently has access to any such trade secrets or Confidential Information is subject to appropriate
written obligations regarding confidentiality and non-disclosure of such trade secrets or Confidential Information, except as has not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries, nor to Knowledge of the Company, other Person is in breach of any Contract referenced in this Section, except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(r) Insurance.
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
all fire and casualty, general liability, business interruption, product liability, sprinkler and water damage, workers’
compensation and employer liability, directors, officers and fiduciaries policies and other liability insurance policies
(“Insurance Policies”) maintained by the Company or any of its Subsidiaries are in full force and effect
and all premiums due with respect to all Insurance Policies have been paid, and neither the Company nor any Subsidiary has taken any
action or failed to take any action that, with notice or lapse of time or both, would constitute a breach or default, or permit a
termination of any of the Insurance Policies, except as has not had, and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(s)
Fairness Opinion.
(i)
The Special Committee has received the opinion of its outside financial advisor, Goldman Sachs & Co. LLC, to the effect that,
as of the date of such opinion and subject to the assumptions, limitations, qualifications and other matters considered in the preparation
thereof, the Merger Consideration to be paid to the Unaffiliated Stockholders in the Company Merger pursuant to this Agreement is fair
from a financial point of view to such holders, and as of the date of this Agreement, the foregoing opinion has not been withdrawn, revoked
or modified in any respect.
(ii)
The Special Committee has received the opinion of its outside financial advisor, Jefferies LLC, to the effect that, as of the date
of such opinion and based on and subject to the assumptions, qualifications, limitations and other matters considered in the preparation
thereof, the Merger Consideration to be received by the holders of shares of Class A Common Stock that are Unaffiliated Stockholders pursuant
to this Agreement is fair, from a financial point of view, to such holders, and as of the date of this Agreement, the foregoing opinion
has not been withdrawn, revoked or modified in any respect.
(t)
Information Supplied. None of the information supplied or to be supplied by the Company for inclusion or incorporation
by reference in a Proxy Statement or the Schedule 13e-3 nor any amendment or supplement thereto will, at the date of mailing to stockholders
and at the time of the Company Stockholders Meeting contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which such statement
was made, not misleading.
(u)
Brokers and Finders. Except for the Company’s obligations to Goldman Sachs & Co., LLC and Jefferies LLC,
no broker, investment banker, financial advisor or other Person is entitled to any brokerage, finders’, financial advisory or similar
fee in connection with the transactions contemplated by this Agreement, including the Merger, based upon arrangements made by or on behalf
of the Company or any Subsidiary of the Company.
(v)
Affiliate Transactions. To the Knowledge of the Company, since December 31, 2022, there have been no transactions,
or series of related transactions, agreements, arrangements or understandings in effect, nor are there any currently proposed transactions,
or series of related transactions, agreements, arrangements or understandings, that would be required to be disclosed under Item 404(a)
of Regulation S-K that have not been otherwise disclosed in the Company Reports filed prior to the date hereof, in each case, other than
any such transactions, or series of related transactions, agreements, arrangements or understandings with the Rollover Stockholders or
their respective Affiliates.
(w) Existing
Credit Document. Without giving effect to the transactions contemplated by this Agreement, (i) as of the date of this
Agreement, no Default or Event of Default has occurred and is continuing under the Existing Credit Document; and (ii) as of
immediately prior to the Company Merger Effective Time, there shall be no Default or Event of Default that has occurred and is
continuing under the Existing Credit Document.
(x)
ERISA Plan Asset Matters.
(i)
To the Knowledge of the Company, none of the Company, any of its Subsidiaries or, other than as set forth on Section 5.1(x)(i)
of the Company Disclosure Schedule, any Private Fund holds “plan assets” of any “benefit plan investor” within
the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA (“Plan Assets”), or the assets
of any employee benefit plan or arrangement that is subject to any federal, state, local or other law that is substantially similar to
Title I of ERISA or Section 4975 of the Code (“Similar Law”). To the Knowledge of the Company, all Private Funds
which are deemed to hold Plan Assets or assets subject to Similar Law have been operated to comply with such applicable Laws, except as
has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ii)
Each of the Company and any of its Subsidiaries that provides (or has within the past six years provided) services to any (A) “employee
benefit plan” as defined in Section 3(3) of ERISA that is subject to Title I of ERISA, (B) “plan” as defined in and
subject to Section 4975 of the Code, or (C) entity, account or other arrangement the assets of which are deemed to include Plan Assets
of such “employee benefit plan” or other “plan” (each, hereafter an “ERISA Client”)
has provided such services: (i) in compliance in all material respects with the applicable requirements of ERISA and Section 4975 of the
Code, and the rules and regulations thereunder; and (ii) has not engaged in or caused an ERISA Client to engage in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code in each case, except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Each of the Company and any of its Subsidiaries that provides, or in the
past six years has provided, any services to any “governmental plan” (as defined in Section 3(32) of ERISA) or any other plan,
account or arrangement that is subject to Similar Law (each such plan, account and arrangement referred to as a Plan, and together with
ERISA Clients “Plan Clients”), has provided such services in compliance in all material respects with any applicable
Similar Law, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. To the Knowledge of the Company, each Subsidiary that provides services to any ERISA Client (other than an ERISA Client that is
an “individual retirement account” described in Section 408(a) of the Code) qualifies as a qualified professional asset manager
(as such term is used in Prohibited Transaction Class Exemption 84-14, as amended) (the “QPAM Exemption”) or
is able to reply on another applicable Prohibited Transaction Exemption, as necessary. None of the Company or, to the Knowledge of the
Company, any of its affiliates (as defined in the QPAM Exemption), has engaged in activity that would result in the inability of it or,
after the transactions contemplated under this Agreement, Parent or any of its affiliates (as defined in the QPAM Exemption), to rely
upon the QPAM Exemption.
(iii) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither
the Company nor any of its Subsidiaries is, or has in the last six years been, the subject of any audit, proceeding, penalty or
enforcement by the U.S. Department of Labor or any other Governmental Authority in connection with any services provided by the
Company or a Subsidiary to any Plan Client or any transaction relating to any Plan Client.
(y)
General Regulatory Compliance.
(i)
Except as set forth on Section 5.1(y)(i) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries
holds, directly or indirectly, any ownership in, or is or is required to be registered, licensed, or qualified as, a bank, insured depository
institution, credit union, trust company, money services business, investment company, investment adviser, broker-dealer, commodity broker-dealer,
commodity pool operator, commodity trading adviser, futures commission merchant, swap execution facility, transfer agent, real estate
broker, introducing broker, municipal advisor, insurance company, insurance agency or producer, insurance broker or municipal securities
dealer except where such failure to be so registered, licensed, or qualified has not had and would not reasonable be expected to have,
individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any notice concerning
any material failure to obtain any such registration, license or qualification. Except as set forth in Section 5.1(y)(i) of the
Company Disclosure Schedule, neither the Company nor any of its Subsidiaries provides services to any non-U.S. Person or any Person outside
the U.S. in a manner or to an extent that requires registration in any such jurisdiction except as has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has made available to Parent a list of all
material customer complaints received by the Company or, to the Knowledge of the Company, any of the Company’s Subsidiaries during
the past three (3) years.
(ii) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the
Knowledge of the Company, during the past three (3) years, each BD Subsidiary, RIA Subsidiary, CPO Subsidiary and CTA Subsidiary has
timely filed all Filings, paid all fees and assessments due and payable in connection therewith, and has maintained within its
records a timely updated version thereof in accordance with SEC, FINRA, CFTC or NFA requirements, as applicable, or other applicable
Law and, at the time of filing each such Filing, such Filing (A) was materially accurate and correct and complied in all material
respects with all applicable Laws, and (B) with respect to any Form BD, Form ADV or NFA Form 7-R, contained no untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. To the Knowledge of the Company there are no
unresolved SEC, FINRA, CFTC, NFA or other Governmental Authority comments with respect to any Filing required under the Exchange
Act, the Investment Advisers Act, the Commodity Exchange Act or FINRA or NFA rules or by-laws or any other applicable Law except as
has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the
RIA Subsidiaries has delivered or made available Part 2 of its Form ADV and its Form CRS, as applicable, to those Advisory Clients
to whom such delivery or offer is required under the Investment Advisers Act or other applicable Law except where the failure to
deliver or make such documents available has not had and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. Each of the BD Subsidiaries has delivered or made available its Form CRS to those Brokerage Clients to
whom such delivery or offer is required under the Exchange Act or other applicable Law except where the failure to deliver or make
such documents available has not had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(iii)
Except for examinations conducted by the SEC, FINRA, the CFTC, NFA or any other Governmental Authority in the ordinary course of
the business of the BD Subsidiaries, RIA Subsidiaries, Private Funds, CPO Subsidiaries and CTA Subsidiary no Governmental Authority has,
within the three (3) years preceding the date hereof, formally initiated any administrative proceeding, or material investigation into
the business or operations of any BD Subsidiary, RIA Subsidiary, Private Fund, CPO Subsidiary or CTA Subsidiary, sent any BD Subsidiary,
RIA Subsidiary, Private Fund, CPO Subsidiary or CTA Subsidiary a written “Wells Notice”, other written indication of the commencement
of an enforcement action from the SEC, FINRA, the CFTC, NFA or any other Governmental Authority, or other formal notice alleging any material
noncompliance with any applicable Law, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. Except as has not had an would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, during the three (3) years preceding the date hereof, no BD Subsidiary, RIA Subsidiary, Private Fund, CPO Subsidiary or
CTA Subsidiary has (A) settled any claim or proceeding of the SEC, FINRA, the CFTC, NFA or any other Governmental Authority, (B) had an
Order entered against such Person under any applicable Law, (C) been subject to any cease and desist, censure or other disciplinary or
similar order issued by any Governmental Authority, (D) been a party to any material written agreement, consent agreement, memorandum
of understanding or disciplinary agreement with any Governmental Authority, or (E) been a recipient of any material supervisory letter
from any Governmental Authority.
(iv)
With respect to any material written report of examination (including any deficiency letter), inspection or investigation of any
BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary issued by any Governmental Authority during the past three (3) years,
to the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect no Governmental Authority has informed such BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary
and no BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary is otherwise aware that (A) any material deficiencies or violations
noted in such examination, inspection or investigation has not been resolved to the satisfaction of such Governmental Authority or (B)
that such Governmental Authority intends to take further action on any such matter. A copy of all reports or correspondence or similar
documents summarizing the results of any inspection of any BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary by the SEC,
FINRA, the CFTC, NFA or any other Governmental Authority (including any deficiency letter) conducted during the past three (3) years have
been made available to Parent.
(v) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and to
the Knowledge of the Company, each of the BD Subsidiaries’, RIA Subsidiaries’, CPO Subsidiaries’ and CTA
Subsidiary’s members, directors, officers, employees, independent contractors, agents and representatives who are required to
be registered, licensed or qualified as (A) an “investment adviser representative” (as such term is defined in Rule
203A-3 under the Investment Advisers Act) of a RIA Subsidiary (a “RIA Associated Person”), (B) a
“principal” (as such term is defined in FINRA Rule 1021), a “representative” (as such term is defined in
FINRA Rule 1031), or an “associated person” (within the meaning of section 3(a)(18) of the Exchange Act) of a BD Subsidiary
(each, a “BD Associated Person”), or (C) an “associated person” (as such term is defined in
CFTC Regulation 1.3) or a “principal” (as such term is defined in CFTC Regulation 3.1) of the CTA Subsidiary or a CPO
Subsidiary (each, a “CFTC Associated Person”), or in any similar capacity, in each case, with any Governmental
Authority (x) is duly and properly registered, licensed or qualified as such, (y) has been so registered, licensed or qualified at
all times while employed or engaged by the relevant BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary (as applicable),
and (z) such licenses are in full force and effect with the applicable Governmental Authority and under applicable Law, or are in
the process of being registered as such within the time periods required by applicable Law.
(vi)
To the Knowledge of the Company, none of its RIA Subsidiaries has accepted any advisory fees from a “government entity”
after such RIA Subsidiary or any “covered associate” of such RIA Subsidiary had made a “contribution” or “coordinated”
or “solicited” a “contribution” to an “official” of that “government entity” (as such
terms are defined in Rule 206(4)-5 under the Investment Advisers Act).
(vii)
To the Knowledge of the Company, there are no no-action letters or exemptive orders or similar regulatory relief issued to the
Company, its Subsidiaries, any Private Fund or any Registered Fund that it continues to rely upon in its respective business as conducted
on the date hereof.
(viii)
To the Knowledge of the Company, none of the Company, its Subsidiaries, the Private Funds or any of their respective general partners
or managing members, or, any of their respective directors, executive officers, or other officers that would participate in an offering
of securities in reliance on Rule 506 of Regulation D under the Securities Act (A) is subject to any of the “bad actor” disqualifications
described in Rule 506(d)(1) under the Securities Act (“Disqualification Events”) or (B) under any pending or
threatened, proceedings or investigation that could result in a Disqualification Event.
(ix) Each
of the RIA Subsidiaries has designated and approved an appropriate chief compliance officer in accordance with Rule 206(4)-7 under
the Investment Advisers Act except where the failure to so designate and approve such chief compliance officer has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each of the RIA Subsidiaries, BD
Subsidiaries, CPO Subsidiaries and the CTA Subsidiary has established, adopted, maintained, had in effect, and, to the Knowledge of
the Company, at all times during the three (3) years preceding the date hereof, each RIA Subsidiary and each of its RIA Associated
Persons, each BD Subsidiary and each of its BD Associated Persons, each CPO Subsidiary and CTA Subsidiary and each of their CFTC
Associated Persons, and each of their respective employees subject thereto have been in compliance in all material respects with,
all written policies and procedures reasonably designed to ensure compliance with applicable Law (including, without limitation,
FINRA Rules 3110, 3120 and 3130, Rule 206(4)-7 under the Investment Advisers Act and NFA Rule 2-9, as applicable) complete and
correct copies of which (including any required reports (including, as applicable, those required under FINRA Rule 3130) prepared by
each BD Subsidiary, RIA Subsidiary, CPO Subsidiary or CTA Subsidiary thereunder during the three (3) years preceding the date hereof
relating to compliance by the BD Associated Persons, BD Subsidiaries, RIA Associated Persons, RIA Subsidiaries, CFTC Associated
Persons, CPO Subsidiaries, the CTA Subsidiary and each of their respective employees subject thereto) have been provided to Parent.
To the Knowledge of the Company, each of the BD Subsidiaries, RIA Subsidiaries, CPO Subsidiaries and the CTA Subsidiary have
maintained all material records relating to their respective business as a broker-dealer, investment adviser, commodity pool
operator or commodity trading advisor as are required to be maintained under the Investment Advisers Act, the Exchange Act, the
Commodity Exchange Act or FINRA or NFA rules and by-laws and all other applicable Laws except in each case as has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(z)
Broker-Dealer Matters.
(i)
Neither the Company nor any of its Subsidiaries other than the BD Subsidiaries (each of which is set forth in Section 5.1(z)(i)
of the Company Disclosure Schedule) meets the definition of “broker” or “dealer” under the Exchange Act or is
registered or required to be registered as a broker or dealer under the Exchange Act or other applicable Laws in any non-U.S. jurisdictions.
Each of the BD Subsidiaries is, and at all times required pursuant to applicable Law has been, duly registered, licensed and qualified,
as applicable, as a broker-dealer with the SEC under the Exchange Act and each state or other jurisdiction where the conduct of its business
requires such registration, license or qualification, duly registered with the Security Investors Protection Corporation, a member in
good standing of FINRA and in compliance with its broker-dealer Membership Agreement with FINRA except where the failure to be so registered,
licensed and qualified has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. The business undertaken by each of the BD Subsidiaries is limited to those permitted under its FINRA Membership Agreement and
Form BD. Each BD Subsidiary’s registration, license or qualification is in full force and effect and no Action is pending, or to
the Company’s knowledge, threatened, to revoke, suspend, cancel or adversely modify any such registration, license or qualification.
(ii) Except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no BD
Associated Person, the Company or any of its Subsidiaries (or any “control affiliate” of a BD Subsidiary (as defined in
Form BD)) or, to the Company’s knowledge, any of their members, directors, officers, employees, agents, associated persons or
representatives are or have been the subject of any Action, Order or other event or circumstance that is required to be disclosed on
the Form BD (including, for the avoidance of doubt, any affirmative response to any question in Item 11 thereof) of any of the BD
Subsidiaries or any Forms U-4 or U-5, that are not so disclosed on the relevant current Form BD or current Forms U-4 or U-5. None of
the Company, or to the Company’s Knowledge, any of its BD Subsidiaries or any BD Associated Person or any of their respective
members, directors, officers, employees, agents, associated persons or representatives (during the term of such Person’s
employment or engagement by such Person or while acting as an agent or representative of such Person), is or has been (A) ineligible
to serve as a broker-dealer or an associated person of a broker-dealer under Section 15(b) of the Exchange Act, (B) subject to
“statutory disqualification” within the meaning of Section 3(a)(39) of the Exchange Act, “heightened
supervision” under the rules of FINRA, “bad actor disqualification” described in Rule 506(d) of the Securities
Act, or any other restriction on activities or future activities as a broker-dealer or an associated person of a broker-dealer
under applicable Law, (C) subject to any Order that enjoins such Person from engaging in or continuing any conduct or practice in
connection with any activity involving or in connection with the purchase or sale of any security, or (D) subject to any
disqualification that would be a basis for censure or denial, suspension or revocation of any BD Subsidiary’s Membership
Agreement with FINRA or registration as a broker-dealer under Section 15 of the Exchange Act. There is no Action with respect to a
BD Subsidiary or a BD Associated Person pending or, to the Company’s Knowledge, threatened, that would reasonably be expected
to result in the occurrence of any of the circumstances set forth in the immediately preceding sentence or any BD Subsidiary having
its authorization to conduct business as a broker-dealer denied, suspended, revoked or restricted.
(iii)
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
each of the BD Subsidiaries maintains, and, at all times during the past three (3) years, has maintained (A) an amount of “net capital”
in compliance with the net capital requirements for brokers or dealers registered, licensed or qualified as a broker-dealer under the
Exchange Act (as determined in accordance with Rule 15c3-1 under the Exchange Act), (B) such additional amounts, if any, required by (or
as agreed with) FINRA and any other Governmental Authority and (C) an amount sufficient to ensure that it has not been required to file
notice under Rule 17a-11 under the Exchange Act. As of the date hereof, no BD Subsidiary has entered into any agreement or arrangement
with any Governmental Authority to increase the amount of regulatory capital it is required to maintain above the amount required to be
maintained under Rule 15c3-1 under the Exchange Act. As of the date hereof, none of the BD Subsidiaries has an aggregate indebtedness
(computed in accordance with Rule 15c3-1 under the Exchange Act) that exceeds 1,500% of its net capital.
(iv)
The receipt of any compensation or payments by each of the BD Subsidiaries under a placement agreement or similar arrangement,
12b-1 Plan or any other solicitation, distribution or revenue sharing arrangement complies in all material respects with applicable Law
(including Rule 206(4)-1 under the Investment Advisers Act), and has been disclosed to all applicable Advisory Clients and Brokerage Clients,
as required by applicable Law except as has not had and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(v)
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
each of the BD Subsidiaries that has a cash sweep program or arrangement (a “Cash Sweep Program”) has received
written affirmative consent from each of its Brokerage Clients as required under Exchange Act Rule 15c3-3(j)(2)(ii), including notification
of the general terms and conditions of the products available through the Cash Sweep Program and that the products available to Brokerage
Clients under the Cash Sweep Program may change, and such BD Subsidiary and its applicable Affiliates has conducted its Cash Sweep Program
in accordance with applicable Laws.
(vi)
With respect to any margin or options accounts provided to any of the BD Subsidiaries’ Brokerage Clients, such BD Subsidiary
is, and at all times during the three (3) years preceding the date hereof has been, in compliance in all material respects with FINRA
Rule 2360 except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
No BD Subsidiary receives any payment for order flows.
(aa)
Investment Adviser Matters.
(i)
Neither the Company nor any of its Subsidiaries other than the RIA Subsidiaries (each of which are set forth in Section 5.1(aa)(i)
of the Company Disclosure Schedule) meets the definition of “investment adviser” under the Investment Advisers Act or is registered
or required to be registered as an investment adviser with the SEC or the securities commission of any state. Each of the RIA Subsidiaries
is, and at all times required pursuant to applicable Law has been, duly registered, licensed and qualified, as applicable, as an investment
adviser with the SEC under the Investment Advisers Act, and except as has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, and each state or other jurisdiction where the conduct of its business requires such registration,
license or qualification and has made notice filings in each state in which such filings are required to be made under applicable Law.
Each such registration, license or qualification is in full force and effect and no Action is pending, or to the Company’s Knowledge,
threatened, to revoke, suspend, cancel or adversely modify any such registration, license or qualification except as has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ii)
To the Knowledge of the Company, no RIA Subsidiary and no RIA Associated Persons or other Person “associated” (as defined
in the Investment Advisers Act) with any RIA, is ineligible or disqualified (or has been convicted of any crime, or is or has been subject
to, any disqualification that would be a basis for a determination of ineligibility or disqualification) (A) pursuant to Section 203(e)
or 203(f) of the Investment Advisers Act to serve as a registered investment adviser or Person “associated” (as defined in
the Investment Advisers Act) with a registered investment adviser or subject to disqualification under Rule 206(4)-3 under the Investment
Advisers Act or (B) pursuant to Section 9(a) or 9(b) of the Investment Company Act to serve as an investment adviser (or in any other
capacity contemplated by the Investment Company Act) to a registered investment company. To the Knowledge of the Company, within the past
three (3) years, no RIA Subsidiary has received any written notice from any Governmental Authority alleging any such ineligibility or
disqualification and no Actions are pending or threatened that would reasonably be expected to result in any such ineligibility or disqualification.
(iii)
Except with respect to such Private Funds and Registered Funds, each of which is set out in Section 5.1(d) of the Company
Disclosure Schedule, no RIA Subsidiary acts as investment adviser, general partner, managing member, sponsor, commodity pool operator
or commodity trading advisor to any other pooled investment vehicle on the date hereof.
(iv)
To the Knowledge of the Company, none of the RIA Subsidiaries engage, and have not in the past three (3) years engaged, in any
purchase, sale, lending, or borrowing transactions with an Advisory Client as a principal, agent, lender or borrower, as applicable in
violation of Rule 206(3) under the Investment Advisers Act.
(v) Each
of the RIA Subsidiaries has implemented policies and procedures reasonably designed to satisfy its duty to seek “best
execution” (as such term is understood under the Investment Advisers Act) for each Advisory Client for which it exercises
trading discretion, as applicable. The receipt of all soft dollar brokerage and research services by any of the RIA Subsidiaries
qualify for the safe harbor afforded by Section 28(e) of the Exchange Act and each such RIA Subsidiary has complied in all material
respects with related disclosure requirements except as has not had and would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. With respect to any “wrap fee program” (as defined under Rule 204-3(f) of the
Investment Advisers Act), model portfolio or similar program sponsored or offered by the Company, such program complies in all
material respects with the requirements of the Investment Advisers Act, the Investment Company Act (including the safe harbor
provisions of Rule 3a-4 promulgated thereunder) and all other applicable Laws except as has not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(vi)
To the Knowledge of the Company, at all times during the three (3) years prior to the date hereof, each RIA Subsidiary has maintained
all assets of its Advisory Clients (including, without limitation, each Private Fund), to the extent required to do so, in accordance
with Rule 206(4)-2 under the Investment Advisers Act and all other applicable Law except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. Except as has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect at all times during the three (3) years, to the extent required to do so by
Rule 206(4)-2 under the Investment Advisers Act, each RIA Subsidiary has obtained the requisite audit of its Advisory Clients’ accounts
(including, without limitation, each Private Fund) and delivered the such audits to its Advisory Clients in accordance with Rule 206(4)-2
under the Investment Advisers Act, and each such audit has been unqualified and no material discrepancy has been reported during the course
of any such audit.
(bb)
Advisory Client Matters.
(i)
During the three (3) years preceding the date hereof, at all times that a RIA Subsidiary was performing investment advisory services
for any Advisory Client there has been in full force and effect at all times a written Advisory Contract for such Advisory Client except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as has
not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the Knowledge of
the Company, each Advisory Contract (A) is a valid and binding agreement of such RIA Subsidiary and such Advisory Client, enforceable
in accordance with its terms, (B) includes all provisions required by and complies with Section 205 of the Investment Advisers Act, (C)
has been entered into and performed by such RIA Subsidiary in all material respects in accordance with its terms (including any applicable
investment restrictions or policies of such Advisory Client), the Investment Advisers Act and applicable Law and (D) there have been no
material errors, miscalculations, discrepancies or changes to calculation methodologies with respect to any fees charged under such Advisory
Contract (or any credits, refunds or reimbursements to such Advisory Clients related thereto), and all fees paid by such Advisory Client
have been calculated in all material respects in accordance with the relevant Advisory Contract and applicable Law, using a calculation
methodology for such fees consistent with the Advisory Contract. To the Knowledge of the Company, during the three (3) years preceding
the date hereof no RIA Subsidiary has been in default in any material respect under any Advisory Contract except as has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ii)
Private Fund Clients.
(A)
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(w) each Private Fund has (as applicable) a separate prime broker, custodian or trustee which is a third-party entity independent of the
applicable RIA Subsidiary; (x) each Private Fund has sufficient collateral to support its current borrowing; (y) no RIA Subsidiary is
a guarantor of, or otherwise liable in connection with, on behalf of, or for any borrowing obligations of any Private Fund; and (z) no
Private Fund, and to the Company’s Knowledge, no investor in a Private Fund, is a Sanctioned Persons or otherwise subject to any
Sanctions.
(B)
To the Knowledge of the Company, as of the date hereof, there are no material defaults by any Private Fund investors on capital
calls or capital contributions with respect to any Private Fund except as has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, and, to the Knowledge of the Company, no limited partner or investor in any Private Fund
has expressed its intent to fail to fund a capital call or capital contribution except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(C)
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
to the extent any Private Fund has or anticipates executing any transactions in instruments regulated by the Commodity Futures Trading
Commission, the relevant RIA Subsidiary or affiliate thereof has timely made all applicable filings and affirmations necessary to claim
the applicable exemption from the CPO or CTA registration requirements under the Commodity Exchange Act listed.
(D)
Section 5.1(bb)(ii)(D) of the Company Disclosure Schedule sets forth a list of each Advisory Client that is a Private Fund
as of the date hereof. No Private Fund is required to register as an investment company under the Investment Company Act except where
the failure to register has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(iii)
Registered Fund Clients.
(A)
Section 5.1(bb)(iii)(A) of the Company Disclosure Schedule lists each Advisory Client that is a Registered Fund as of the
date hereof. Other than the Registered Funds, no Advisory Client is, or is required to be, registered as an investment company with the
SEC under the Investment Company Act except where the failure to register has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(B)
None of the Company, any RIA Subsidiary or any of the respective Affiliates controls any Registered Fund. Except as disclosed in
Section 5.1(bb)(iii)(A) of the Company Disclosure Schedule, Registered Funds have been organized on third-party trust platforms
and have not been sponsored or organized by the Company, RIA Subsidiary or any of their respective Affiliates except as has not had and
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(C)
Each Advisory Contract with a Registered Fund has been duly approved, continued and at all times has been in compliance in all
material respects with Section 15 of the Investment Company Act except as has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(D)
To the Knowledge of the Company, each Registered Fund is, and has at all times during the three (3) years prior to the date hereof
has been, operated in compliance in all material respects with (i) applicable Law and (ii) its respective investment restrictions and
policies, except in each case as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(cc)
Commodity Pool Operator and Commodity Trading Advisor Matters.
(i)
Neither the Company nor any of its Subsidiaries other than the CPO Subsidiaries meets the definition of “commodity pool operator”
under the Commodity Exchange Act or is registered or required to be registered as a commodity pool operator under the Commodity Exchange
Act or other applicable Laws in any non-U.S. jurisdictions except where the failure to register has not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. Each CPO Subsidiary is, and at all times required pursuant
to applicable Law has been, duly registered, licensed and qualified, as applicable, as a commodity pool operator with the CFTC under the
Commodity Exchange Act and each state or other jurisdiction where the conduct of its business requires such registration, license or qualification,
and a member in good standing of NFA except in each case as has not had and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Each such registration, license or qualification is in full force and effect and no Action
is pending, or to the Company’s knowledge, threatened, to revoke, suspend, cancel or adversely modify any such registration, license
or qualification except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(ii)
Neither the Company nor any of its Subsidiaries other than the CTA Subsidiary meets the definition of “commodity trading
advisor” under the Commodity Exchange Act or is registered or required to be registered as a commodity trading advisor under the
Commodity Exchange Act or other applicable Laws in any non-U.S. jurisdictions. The CTA Subsidiary is, and at all times required pursuant
to applicable Law has been, duly registered, licensed and qualified, as applicable, as a commodity trading advisor with the CFTC under
the Commodity Exchange Act and each state or other jurisdiction where the conduct of its business requires such registration, license
or qualification, and a member in good standing of NFA except in each case as has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Each such registration, license or qualification is in full force and effect
and no Action is pending, or to the Company’s knowledge, threatened, to revoke, suspend, cancel or adversely modify any such registration,
license or qualification except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(iii) No
CFTC Associated Person, the Company or any of its Subsidiaries or, to the Company’s Knowledge, any of their members,
directors, officers, employees, agents, associated persons or representatives are or have been the subject of any Action, Order or
other event or circumstance that is required to be disclosed on NFA Form 7-R of any of the CPO Subsidiaries or the CTA Subsidiary or
any NFA Form 8-R, that are not so disclosed on the relevant current NFA Form 7-R or current NFA Form 8-R. Except as has not had and
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no CFTC Associated Person,
the Company or any of its CPO Subsidiaries or the CTA Subsidiary, or to the Company’s Knowledge, any of their respective
members, directors, officers, employees, agents, associated persons or representatives (during the term of such Person’s
employment or engagement by such Person or while acting as an agent or representative of such Person), is or has been (i) ineligible
to serve as a commodity trading advisor, commodity pool operator or “associated person” or “principal” of a
commodity trading advisor or commodity pool operator under the Commodity Exchange Act, (ii) subject to any disqualification or
restriction on activities or future activities as a commodity trading advisor, commodity pool operator or an “associated
person” or “principal” of a commodity trading advisor or commodity pool operator under applicable Law, (iii)
subject to any Action or Order that enjoins such Person from engaging in or continuing any conduct or practice in connection with
any activity involving or in connection with the purchase or sale of any commodity futures contracts, options on futures, retail off
exchange forex contracts, swaps or any other instrument regulated by the CFTC, or (iv) subject to any disqualification that would be
a basis for censure or denial, suspension or revocation of any CPO Subsidiary’s or the CTA Subsidiary’s membership in
NFA or registration as a commodity pool operator or commodity trading advisor under the Commodity Exchange Act, respectively. Except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, there is
no Action pending or, to the Company’s Knowledge, threatened, that would reasonably be expected to result in the occurrence of
any of the circumstances set forth in the immediately preceding sentence or the CTA Subsidiary or any CPO Subsidiary having its
authorization to conduct business as a commodity trading advisory or commodity pool operator, respectively, suspended, revoked or
restricted.
(iv)
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
the CTA Subsidiary and each CPO Subsidiaries maintain, and, at all times during the past three (3) years, has maintained (i) an amount
of “net capital” or “adjusted net capital” in compliance with the “net capital” and “adjusted
net capital” requirements for commodity pool operators or commodity trading advisors, as applicable, under the Commodity Exchange
Act and by NFA rules and bylaws, (ii) such additional amounts, if any, required by (or as agreed with) NFA and any other Governmental
Authority and (iii) an amount sufficient to ensure that it has not been required to file a notice of undercapitalization with NFA.
(dd)
No Other Representations or Warranties. Except for the representations and warranties contained in Section 5.2
or in any closing certificate delivered pursuant to Section 7.3(c) and the representations of the Guarantors under the Guarantees,
the Company agrees and acknowledges that neither Parent nor any Person on behalf of Parent makes any other express or implied representation
or warranty with respect to Parent or any of its Subsidiaries or with respect to any other information provided or made available to the
Company in connection with this Agreement or the Mergers, including information conveyed at management presentations, in virtual data
rooms or in due diligence sessions and, without limiting the foregoing, including any estimates, projections, predictions or other forward-looking
information, and Parent shall not have any liability to the Company resulting from the Company’s reliance on any such information.
5.2.
Representations and Warranties of Parent and Merger Subs. Except as set forth in the disclosure schedule
delivered to the Company by Parent immediately prior to the execution of this Agreement (the “Parent Disclosure Schedule”)
(it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Schedule shall be deemed disclosure
with respect to any other section or subsection to the extent (and only to the extent) that the relevance of such item is reasonably apparent
on the face of such disclosure), each of Parent and Merger Subs hereby represents and warrants to the Company that:
(a) Organization,
Good Standing and Qualification. (i) Parent is a limited liability company duly formed and in good standing under the
Laws of the State of Delaware, (ii) Company Merger Sub is a corporation duly incorporated, validly existing and in good
standing under the Laws of the State of Delaware, (iii) LLC Merger Sub is a limited liability company duly formed, validly existing
and in good standing under the Laws of the State of Delaware, (iv) each of Parent and Merger Subs has all requisite
corporate or limited liability company power and authority to own, lease and operate its properties and assets and to carry on its
business as presently conducted and (v) each of Parent and Merger Subs is qualified to do business and is in good standing
in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business require such
qualification, in the case of each of clause (iii) and clause (v), except as does not and would not reasonably be
expected, individually or in the aggregate, to prevent, materially delay or materially impair the ability of Parent or either Merger
Sub, as applicable, to consummate the Mergers or any other transactions contemplated by this Agreement by the Outside Date.
(b)
Corporate Authority. No vote of holders of capital stock of Parent is necessary to approve this Agreement or the
Mergers or any other transactions contemplated by this Agreement. Each of Parent and Merger Subs has all requisite corporate or limited
liability company power and authority and has taken all corporate or limited liability company action necessary to execute, deliver and
perform its obligations under this Agreement and to consummate the Mergers and any other transactions contemplated by this Agreement,
subject only to the adoption of this Agreement by the sole stockholder of Company Merger Sub, which such approval shall occur immediately
following the execution of this Agreement. This Agreement has been duly executed and delivered by each of Parent and Merger Subs and constitutes
a valid and binding agreement of Parent and Merger Subs (assuming due authorization, execution and delivery by the Company), enforceable
against each of Parent and Merger Subs in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(c)
Governmental Filings; No Violations.
(i) The
execution, delivery and performance by Parent and Merger Subs of this Agreement and the consummation by Parent and Merger Subs of
the transactions contemplated by this Agreement require no authorization or other action by or in respect of, or filing with, any
Governmental Authority other than (A) the filing of the Certificates of Merger with the Secretary of State of the State of
Delaware, (B) compliance with any applicable requirements of the HSR Act, (C) compliance with any applicable
requirements of any other Antitrust Laws set forth on Section 5.1(d)(i) of the Company Disclosure Schedule,
(D) compliance with any applicable requirements of the Exchange Act, the Securities Act and any other applicable U.S. state
or federal securities, takeover or “blue sky” Laws, (E) compliance with any applicable stock exchange rules,
(F) the FINRA Approvals and the State BD Approvals and (G) where the failure to take such actions or obtain such
authorization would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair
the ability of Parent or Merger Subs to consummate the Mergers and any other transactions contemplated by this Agreement.
(ii)
The execution, delivery and performance by Parent and Merger Subs of this Agreement and the consummation by Parent and Merger Subs
of the transactions contemplated in this Agreement do not and will not (A) assuming compliance with the matters referred to in
Section 5.2(c)(i), conflict with or result in any violation or breach of any provision of the organizational documents of
Parent, Merger Subs or any of their respective Subsidiaries, (B) assuming compliance with the matters referred to in Section 5.2(c)(i),
conflict with or result in a violation or breach of any applicable Law, (C) assuming compliance with the matters referred to in
Section 5.2(c)(i), other than the consents described in Section 6.19, require any consent by any Person under, constitute
a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the
termination, acceleration of any right or obligation or the loss of any benefit to which the Parent, Merger Subs or any of their respective
Subsidiaries are entitled, under any Contract binding upon Parent, Merger Subs or any of their respective Subsidiaries, or to which any
of their respective properties, rights or other assets are subject, or any Company Permit necessary to conduct the business of Parent,
Merger Subs or any of their Subsidiaries as currently conducted or (D) result in the creation of a Lien (other than Permitted
Liens) on any of the properties or assets (including intangible assets) of Parent, Merger Subs or any of their Subsidiaries, except in
the case of clause (B), clause (C) and clause (D), any such violation, breach or conflict that would not, individually
or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Subs to
consummate the Mergers and any other transactions contemplated by this Agreement.
(d)
Litigation. As of the date of this Agreement, there are no pending or, to the Knowledge of Parent, threatened Actions
against Parent or Merger Subs that seek to enjoin, or would reasonably be expected to have the effect of preventing, making illegal, or
otherwise interfering with, any of the transactions contemplated by this Agreement, except as would not, individually or in the aggregate,
reasonably be expected to prevent or materially delay the ability of Parent and Merger Subs to consummate the Mergers and any other transactions
contemplated by this Agreement.
(e)
Guarantees. Concurrently with the execution of this Agreement, the Guarantors have delivered to the Company a true,
complete and correct copy of its duly executed Guarantees. Each of the Guarantees is in full force and effect, has not been amended or
modified and constitutes a legal, valid and binding obligation of the applicable Guarantor, enforceable against it in accordance with
its terms, subject to the Bankruptcy and Equity Exception. No event has occurred that, with or without notice or lapse of time or both,
would, or would reasonably be expected to, constitute a default on the part of the applicable Guarantor pursuant to their respective Guarantees.
(f)
Equity Financing.
(i)
Equity Commitment Letters. As of the date of this Agreement, Parent has delivered to the Company a true, correct
and complete copy of an executed commitment letter, dated as of the date of this Agreement, between Parent and each of the Guarantors
(the “Equity Commitment Letters”) pursuant to which each of the Guarantors has committed, subject to the terms
and conditions thereof, to invest in Parent, directly or indirectly, the cash amounts set forth therein (the “Equity Financing”).
On the terms and subject to the conditions set forth therein, the Equity Commitment Letters provide that (i) the Company is an express
third-party beneficiary thereof in connection with the Company’s exercise of its rights under Section 9.5(b); and (ii)
Parent and the Guarantors will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that
there is an adequate remedy at law in connection with the exercise by the Company of such third-party beneficiary rights.
(ii)
Validity. As of the date hereof, each of the Equity Commitment Letters is in full force and effect and constitutes
the valid, binding and enforceable obligation of Parent and the applicable Guarantor, as applicable, and, to the Knowledge of Parent,
the other parties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception). As of the date
hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing contemplated
by the Equity Commitment Letters, other than the conditions precedent set forth in the Equity Commitment Letters (such conditions precedent,
the “Financing Conditions”). As of the date hereof and assuming the satisfaction of the conditions set forth
in Section 7.1 and Section 7.2, Parent has no reason to believe that (A) any of the Financing Conditions
will not be satisfied on or prior to the Closing Date or (B) the Equity Financing contemplated by the Equity Commitment Letters
will not be available to Parent on the Closing Date. As of the date hereof, Parent and the Guarantors, as applicable, are not in default
or breach under the terms and conditions of the Equity Commitment Letters and no event has occurred that, with or without notice, lapse
of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a Financing Condition,
in each case on the part of Parent or any of the Guarantors, as applicable. Parent, or an Affiliate thereof on its behalf, has fully paid
any and all commitment or other fees and amounts required by the Equity Commitment Letters to be paid on or prior to the date hereof and
will pay in full as and when due any such amounts due on or before the Closing Date.
(iii)
No Amendments. As of the date of this Agreement, (A) the Equity Commitment Letters have not been amended
or modified in any manner and no such amendment or modification is contemplated; and (B) the commitments contained in the Equity
Commitment Letters have not been withdrawn, terminated, repudiated or rescinded in any respect by Parent or the Guarantors, as applicable,
or, to the Knowledge of Parent, any other party thereto, and no such withdrawal, termination, repudiation or rescission is contemplated
by Parent or the Guarantors, as applicable, or, to the Knowledge of Parent, any other party thereto.
(iv)
No Other Arrangements. As of the date of this Agreement, none of the Guarantors, Parent, Merger Subs or any of their
respective Affiliates has entered into any side letters, understandings or other agreements, contracts or arrangements of any kind relating
to the Equity Commitment Letters or the Equity Financing to which Parent or any of its Affiliates is a party that would reasonably be
expected to adversely affect the conditionality, availability or amount of the Equity Financing contemplated by the Equity Commitment
Letters.
(v)
Sufficiency of Financing. The Equity Financing, when funded in accordance with the Equity Commitment Letters, will
provide Parent and Merger Subs with available funds sufficient for the satisfaction of Parent’s and Merger Subs’ payment obligations
under this Agreement (which does not include, for the avoidance of doubt, any payment with respect to any Class A Rollover Shares) and
the Equity Commitment Letters on the Closing Date, including for the payment of the Merger Consideration, the Option Consideration and
the Closing TRA Payoff Amount and any fees and expenses of or payable by Parent, Merger Subs or the Guarantors (such amounts, collectively,
the “Required Amounts”).
(g)
Ownership of Merger Subs; No Prior Activities. As of the date hereof, the authorized capital stock of Company Merger
Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are duly authorized, validly issued and outstanding.
The LLC Merger Sub has one class of limited liability company interests, 1,000 units of which are duly authorized, validly issued and
outstanding. All of the issued and outstanding equity interests of Merger Subs are, and at the Company Merger Effective Time and the LLC
Merger Effective Time, as applicable, will be, owned by Parent or a direct or indirect wholly-owned Subsidiary of Parent, and, other
than equity interests owned by Parent or a direct or indirect wholly-owned Subsidiary of Parent, there are (i) no other equity
interests, shares of capital stock or voting securities of Merger Subs, (ii) no securities of Merger Subs convertible into or
exchangeable for equity interests, shares of capital stock or voting securities of Merger Subs and (iii) no options or other
rights to acquire from Merger Subs, and no obligations of Merger Subs to issue, any equity interests, capital stock, voting securities
or securities convertible into or exchangeable for equity interests, capital stock or voting securities of Merger Subs. Merger Subs have
not conducted any business prior to the date of this Agreement and has no, and prior to the Company Merger Effective Time will have no,
business activities, assets, liabilities or obligations of any nature other than those incident to its formation or pursuant to this Agreement
and the Mergers and any other transactions contemplated by this Agreement.
(h)
Solvency. Parent is not entering into this Agreement with the actual intent to hinder, delay or defraud either present
or future creditors of itself or any of its Affiliates. Immediately after giving effect to the consummation of the transactions contemplated
by this Agreement (including the Equity Financing), and assuming the accuracy of the representations and warranties set forth in Section 5.1
in a manner that would satisfy the condition set forth in Section 7.2(a), Parent and each of its Subsidiaries will be Solvent.
(i)
Brokers and Finders. Except for any Person whose fees and expenses will be paid by Parent, neither Parent nor Merger
Subs has employed any broker or finder or incurred any liability for any brokerage fees, commissions or finder’s fees for which
the Company would be responsible in connection with the Mergers or any other transactions contemplated by this Agreement.
(j) Information
Supplied. None of the information supplied or to be supplied by Parent or Merger Subs for inclusion or incorporation by
reference in a Proxy Statement or the Schedule 13e-3 and any amendment or supplement thereto will, at the date of mailing to
stockholders and at the time of the Company Stockholders Meeting contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which such statement was made, not misleading.
(k)
Ownership of Shares of Company Stock. None of Parent, Merger Subs or any of their “affiliates” or “associates”
(as such terms are defined in Article Tenth of the Amended and Restated Certificate of Incorporation of the Company) is, nor at any time
in the last three years has been, an “interested stockholder” (as such term is defined in Article Tenth of the Amended and
Restated Certificate of Incorporation of the Company). None of Parent, Merger Subs or any of their “affiliates” or “associates”
(as such terms are defined in Article Tenth the Amended and Restated Certificate of Incorporation of the Company) beneficially owns (or
has beneficially owned in the past three years) any shares of Company Stock or other securities of, or economic interests in, the Company.
(l)
Covered Transactions. The Mergers and any other transactions contemplated by this Agreement that could involve foreign
investment do not constitute a “covered transaction” as defined in 31 C.F.R. 800.213.
(m)
No Other Representations or Warranties. Except for the representations and warranties contained in Section 5.1
or in any closing certificate delivered pursuant to Section 7.2(c), Parent and Merger Subs agree and acknowledge that neither
the Company nor any Person on behalf of the Company makes any other express or implied representation or warranty with respect to the
Company or any of its Subsidiaries or with respect to any other information provided or made available to Parent or Merger Subs in connection
with this Agreement or the Mergers, including information conveyed at management presentations, in virtual data rooms or in due diligence
sessions and, without limiting the foregoing, including any estimates, projections, predictions or other forward-looking information,
and the Company shall not have any liability to Parent or Merger Subs resulting from Parent’s or Merger Subs’ reliance on
any such information. Each of Parent and Merger Subs specifically disclaims that it is relying on or has relied on any representations
or warranties, other than those representations and warranties contained in Section 5.1, that may have been made by any Person,
and acknowledges and agrees that the Company and its Affiliates have specifically disclaimed and do hereby specifically disclaim any such
other representations and warranties. Each of Parent and Merger Subs, on behalf of itself and its Subsidiaries, acknowledges and agrees
that it has had reasonable access to, and has been afforded the opportunity to request and review, the books and records of the Company
and its Subsidiaries (including in the possession of the Company’s Representatives).
Article
VI
Covenants
6.1.
Interim Operations.
(a) During
the period commencing on the date hereof and running until the earlier of the Closing Date and the termination of this Agreement in
accordance with Article VIII (the “Pre-Closing Period”), except (i) as expressly
contemplated, required or permitted by this Agreement (including, for the avoidance of doubt, the Vested Units Exchanges),
(ii) as required by applicable Law, (iii) as approved in writing by Parent (such approval not to be unreasonably
withheld, delayed or conditioned), (iv) for any action taken or omitted to be taken, in order to comply with any COVID-19
Measures or which is otherwise taken or omitted to be taken reasonably and in good faith in response to COVID-19 (provided,
that, with respect to actions taken or omitted to be taken in reliance on this clause (iv), to the extent permitted under applicable
Law and practicable under the circumstances, the Company shall provide prior notice to and consult in good faith with Parent prior
to taking such action), or (v) as set forth on Section 6.1 of the Company Disclosure Schedule, the Company
will, and will cause its Subsidiaries to, use its and their commercially reasonable efforts to (A) conduct their businesses in
the ordinary course of business consistent with past practice and (B) preserve intact in all material respects their respective
assets, properties, business organizations and relationships with partners, clients, suppliers, distributors and other Persons with
which it has material business dealings; provided that no action by the Company or its Subsidiaries with respect to matters
specifically permitted by any provision of Section 6.1(b) shall be deemed a breach of this sentence unless such action
would otherwise constitute a breach of such provision of Section 6.1(b).
(b)
During the Pre-Closing Period, except (1) as expressly contemplated, required or permitted by this Agreement, (2) as required
by applicable Law, (3) as approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned) or
(4) as set forth on Section 6.1 of the Company Disclosure Schedule, the Company will not, and will cause its Subsidiaries
not to:
(i)
(x) adopt any change in the certificate of incorporation or bylaws of the Company or (y) adopt any change in the
comparable organizational document of any of the Company’s Subsidiaries (including any amendment to the Focus LLC Agreement);
(ii)
merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize, recapitalize or
completely or partially liquidate or dissolve or otherwise enter into any agreement or arrangement imposing restrictions on the assets,
operations or business of the Company or any of its Subsidiaries, other than restructuring, reorganization, recapitalization, liquidation
or dissolution of any wholly owned Subsidiary of the Company that are immaterial to the Company and its Subsidiaries, taken as a whole,
and to the extent such actions are not expected to be adverse to Parent (provided that this Section 6.1(b)(ii) shall not prevent
the structuring of a transaction specifically permitted by Section 6.1(b)(xiii) in the form of a merger or consolidation (provided,
further, that (x) the use of such structure is consistent with past practice and (y) neither the Company nor Focus LLC is merging
or consolidating with any other Person);
(iii)
issue, sell, pledge, encumber, dispose of or grant, or authorize the issuance, sale, pledge, encumbrance, disposition or grant
of, any shares of capital stock of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exercisable
for any shares of such capital stock, or any options, warrants, restricted shares, restricted share units, performance share units, stock
appreciation rights, phantom stock or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable
securities, in each case, other than (A) any such transaction among the Company and its wholly-owned Subsidiaries or among the
Company’s wholly-owned Subsidiaries, or (B) any grant or issuance of shares of Company Stock (1) in exchange
for Focus LLC Units in accordance with the terms of the Focus LLC Agreement, (2) in respect of any exercise of Company Options
or (3) in settlement of any Company RSUs;
(iv)
make any loans, advances or capital contributions to or investments in any Person (other than to the Company or any of its wholly-owned
Subsidiaries);
(v)
declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect
to any of its capital stock, except for (A) dividends or other distributions paid by any wholly-owned Subsidiary of the Company
to the Company or to any other wholly-owned Subsidiary of the Company and (B) distributions in accordance with Section 5.2 of the
Focus LLC Agreement in amounts reasonably determined by Focus LLC to be no greater than necessary to satisfy its obligations under Section
5.2 of the Focus LLC Agreement to all of the members of Focus LLC consistent with past practice, including, to the extent consistent with
past practice, making quarterly tax distributions and utilizing the numerically stated tax rate set forth in the definition of “Assumed
Tax Rate” in the Focus LLC Agreement;
(vi)
reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock
or securities convertible or exchangeable into or exercisable for any shares of its capital stock except for (A) any such transaction
solely among any of the Company’s wholly-owned Subsidiaries, (B) acquisitions of shares of Company Stock or Focus LLC Units
in satisfaction of withholding obligations in respect of Company Equity Awards, or (C) acquisitions of Focus LLC Units in connection
with an exchange of such Focus LLC Units for shares of Company Stock or cash in accordance with the terms of the Focus LLC Agreement;
(vii)
create, incur, assume or guarantee any Indebtedness for borrowed money or issue any debt securities or guarantees of the same or
any other Indebtedness, except for (A) borrowings in the ordinary course of business under the Company’s Existing Credit
Document (other than Indebtedness incurred in reliance on the Maximum Incremental Facilities Amount; (B) guarantees or credit
support provided by the Company or any of its Subsidiaries of the obligations of the Company or any of its Subsidiaries in the ordinary
course of business consistent with past practice to the extent such Indebtedness is in existence on the date of this Agreement or incurred
in compliance with clause (A) of this Section 6.1(b)(vii) and (C) any Indebtedness solely among the Company and
its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(viii) (A)
other than in the ordinary course of business consistent with past practice, enter into any Contract that would have been a
Material Contract had it been entered into prior to the date of this Agreement; provided, that no Contract of the type
described in Section 5.1(k)(i)(B) shall be entered into without the prior written consent of Parent, (B) amend, modify
or waive in any material respect in a manner adverse to the Company or any of its Subsidiaries or terminate any Material Contract
(other than expirations of any such Contract in accordance with its terms), (C) amend, modify or waive in any material respect or
terminate any management agreement; provided that this clause (C) shall not restrict any amendment, modification or waiver
reasonably necessary to (x) add or remove principals as parties to such management agreement in the ordinary course of business or
(y) adjust for economics consistent with acquired earnings and past practice in connection with acquisitions completed following the
date hereof in accordance with the terms hereof, or (D) amend, modify or waive in any material respect any Contract containing a
minimum purchase, “earnout” or other contingent or deferred payment obligation of the Company and its Subsidiaries;
(ix)
make any material changes with respect to financial accounting policies or procedures, except as required by Law or by U.S. GAAP
or official interpretations with respect thereto or by any Governmental Authority or quasi-Governmental Authority (including the Financial
Accounting Standards Board or any similar organization);
(x)
settle any Action for an amount in excess of $500,000 individually or $1 million in the aggregate other than (A) any settlement
or compromise where the amount paid or to be paid by the Company or any of its Subsidiaries is fully covered (less retention or deductible
under the applicable insurance policy) by insurance coverage amounts maintained by the Company or any of its Subsidiaries, (B) settlements
or compromises of any Action for an amount not materially in excess of the amount, if any, reflected or specifically reserved in the balance
sheet (or the notes thereto) of the Company included in the Company Reports (with materiality measured relative to the amount so reflected
or reserved, if any) filed prior to the date hereof, and (C) settlements or compromises of any Action where the Company or any of its
Subsidiaries is the plaintiff and is receiving payment in connection with such settlement or compromise; provided that, in the case of
each of the foregoing clause (A), (B) and (C), the settlement or compromise of such Action does not (x) impose any non-de
minimis restriction on the business or operations of the Company or any of its Subsidiaries (or Parent or any of its Subsidiaries after
the Closing) and (y) include any non-de minimis non-monetary or injunctive relief, or the admission of wrongdoing, by the Company
or any of its Subsidiaries or any of their respective officers or directors;
(xi)
assign, transfer, sell, lease, license, encumber (other than Permitted Liens), abandon, permit to lapse, or otherwise dispose of
any material assets or property (including any material Intellectual Property Rights) except (A) as may be required by a Governmental
Authority to permit or facilitate the consummation of the Mergers or any of the other transactions contemplated in this Agreement solely
to the extent required pursuant to Section 6.5 or (B) transactions among the Company and its wholly-owned Subsidiaries
or among the Company’s wholly-owned Subsidiaries; provided, that, for the avoidance of doubt, the loss of a customer
or client in the ordinary course of business shall not be covered by this Section 6.1(b)(xi);
(xii) except
for such actions required by Benefit Plans in existence as of the date hereof: (A) increase or decrease the compensation or
other benefits payable or provided to any of the current or former employees or other Service Providers of the Company or any of its
Subsidiaries or any of the Employer Entities (other than, solely with respect to the Company’s Subsidiaries other than the
Employer Entities, in the ordinary course of business consistent with past practice and as permitted by the relevant
Subsidiary’s management agreement with the Company, as in effect on the date hereof and substantially in the form made
available to Parent); (B) increase or accelerate or commit to increase or accelerate the funding, payment or vesting of
compensation or benefits provided under any Benefit Plan (other than under any Benefit Plan maintained by one of the Company’s
Subsidiaries other than the Employer Entities in the ordinary course of business consistent with past practice and as permitted by
the relevant Subsidiary’s management agreement with the Company in effect on the date hereof and substantially in the form
made available to Parent); (C) grant or promise to grant any cash or equity or equity-based incentive awards, bonus, change
of control, severance or retention award to any of its current or former employees or other Service Providers of the Company or any
of its Subsidiaries (other than, solely with respect to the Company’s Subsidiaries other than the Employer Entities, in the
ordinary course of business consistent with past practice and as permitted by the relevant Subsidiary’s management agreement
with the Company as in effect on the date hereof and substantially in the form made available to Parent); (D) hire, engage,
furlough or terminate (other than for cause) the employment of any employee, officer, director, or other Service Provider of the
Employer Entities, in each case with respect to this clause (D), whose annualized compensation exceeds $400,000 (other than, solely
with respect to the Company’s Subsidiaries other than the Employer Entities, in the ordinary course of business consistent
with past practice and as permitted by the relevant Subsidiary’s management agreement with the Company, as in effect on the
date hereof and substantially in the form made available to Parent); or (E) (i) establish, adopt, enter into, terminate or
materially amend any material Benefit Plan of the Company or the Employer Entities (or any plan, program, agreement or arrangement
that would be a Benefit Plan of the Company or the Employer Entities if in effect on the date hereof) or (ii) establish, adopt,
enter into, terminate or materially amend any material Benefit Plan of any Subsidiaries of the Company other than the Employer
Entities (or any plan, program, agreement or arrangement that would be a Benefit Plan of any such Subsidiaries if in effect on the
date hereof), in each case under this clause (ii), other than in the ordinary course of business consistent with past practice and
as permitted by the relevant Subsidiary’s management agreement with the Company, as in effect on the date hereof and
substantially in the form made available to Parent; provided, however, that nothing in this clause (E) shall permit
any actions to establish, adopt, enter into, terminate or materially amend the types of benefit plans and arrangements described in
Section 5.1(i)(iv);
(xiii) acquire
any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of
stock, purchase of assets, merger, consolidation or otherwise), other than (A) the acquisition of assets from vendors or suppliers
of the Company or any of its Subsidiaries in the ordinary course of business, (B) (x) the acquisition of wealth management
businesses or assets of such businesses (other than any Person registered or required to be registered as a “broker” or
“dealer” with the SEC under the Exchange Act) and (y) joint ventures with or other minority investments in wealth
management businesses (other than any Person registered or required to be registered as a “broker” or
“dealer” with the SEC under the Exchange Act), in the case of this clause (B), so long as such acquisitions, joint
ventures or other minority investments (x) do not exceed $10 million (including “earnouts” or other contingent payments)
individually and $50 million (including “earnouts” or other contingent payments) in the aggregate, in each case, based
on the Company’s best estimate (made in good faith) of such consideration and payments (including “earnouts” and
other contingent payments) as set forth in the final investment committee memorandum (and used in the Company’s underwriting
assumptions) at the time of the entry into the definitive agreement providing for such acquisition, joint venture or minority
investment, (y) would not prevent, materially delay or materially impede the transactions contemplated hereby and (z) would not
require Parent, Stone Point or their respective Affiliates to make any additional filing or notice with or disclosure to any
Governmental Authority, other than those filings or notices expressly required by this Agreement or the disclosure of information
that is consistent with previous press releases, public disclosures or public statements made jointly by Parent and the Company or
to the extent that they have been reviewed and previously approved by both Parent and the Company, or (C) (x) any pending
acquisition of any Person, business or assets (whether by merger, sale of stock, sale of assets or otherwise) with an executed
letter of intent or purchase agreement that is set forth on Section 6.1(b)(xiii) of the Company Disclosure Schedule or (y)
any other acquisition of any Person, business or assets (whether by merger, sale of stock, sale of assets or otherwise) that is
disclosed on Section 6.1(b)(xiii) of the Company Disclosure Schedule; provided, for avoidance of doubt, that the upfront
consideration or any deferred (i.e., non-contingent) payment obligations (not including “earnouts” or other contingent
payments) payable in connection with any acquisitions permitted under this clause (C) shall not count towards the individual or
aggregate dollar thresholds set forth under clause (B) above;
(xiv)
other than where such action is required by Law (A) change or revoke any material Tax election; (B) change any
annual Tax accounting period or material method of Tax accounting, (C) file any material amended Tax Return, (D) settle
or compromise any material claim related to Taxes for an amount materially in excess of amounts reserved, (E) enter into any material
closing agreement with respect to Taxes or (F) surrender any right to claim a material Tax refund for an amount materially in
excess of amounts reserved (it being agreed and understood that, notwithstanding any other provision, neither Section 6.1(b)(x)
nor Section 6.1(b)(xxiv) (insofar as it relates to Section 6.1(b)(x)) shall apply to Tax compliance matters);
(xv)
other than in accordance with the Company’s capital expenditure budget made available to Parent, incur or commit to any capital
expenditure or expenditures, except capital expenditures of less than $750,000 individually or $2.5 million in the aggregate;
(xvi)
disclose any material trade secrets or material Confidential Information to third parties outside of the ordinary course of business
(other than pursuant to a written confidentiality agreement entered into in the ordinary course of business consistent with past practice);
(xvii)
make any material change to the operation or security of any Company System, or the Company’s or any of its Subsidiaries’
policies or procedures with respect to Protected Information, in each case in a manner adverse to the Company or any of its Subsidiaries,
except, in each case, as required by applicable Law or, solely with respect to the Company’s Subsidiaries, in the ordinary course
of business consistent with past practice and as permitted by the relevant Subsidiary’s management agreement with the Company, as
in effect on the date hereof and substantially in the form made available to Parent;
(xviii)
negotiate or enter into any Labor Agreement or recognize or certify any labor union, labor organization, works council, or group
of employees as the bargaining representative for any employees of the Company or any of its Subsidiaries;
(xix)
implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions,
work schedule changes or other such actions that trigger notice requirements pursuant to the WARN Act;
(xx)
voluntarily terminate, suspend, abrogate, amend or modify any material Company Permit in a manner materially adverse to the Company
and its Subsidiaries, taken as a whole;
(xxi)
any action that would result in any BD Subsidiary (A) maintaining an amount of capital less than the amount required to be maintained
by such BD Subsidiary under Rule 15c3-1 of the Exchange Act, as agreed to with FINRA and any other Governmental Authority or sufficient
to ensure that it is required to file notice under Rule 17a-11 under the Exchange Act or (B) having an aggregate indebtedness (computed
in accordance with Rule 15c3-1 under the Exchange Act) that exceeds 1,500% of its net capital;
(xxii)
cancel, modify, amend or waive or terminate the Existing Credit Document, except for modifications or amendments to the Existing
Credit Document that would not (A) impair the ability of Parent to obtain the Debt Financing under (i) clauses (b)(I) and (b)(II)(A) of
the definition of “Maximum Incremental Facilities Amount” in the Existing Credit Document in an amount not less than $500.0
million on the Closing Date and (ii) clause (a)(i) of the definition of “Maximum Incremental Facilities Amount” in the Existing
Credit Document in an amount not less than $240.0 million on the Closing Date, (B) reduce the ability of the Company and its Subsidiaries
to incur secured debt for borrowed money in the form of the Debt Financing on the Closing Date in any material respect, (C) reduce the
ability of the Company and its Subsidiaries to make Restricted Payments on the Closing Date in any material respect, (D) impair the ability
of the Mergers to be consummated in compliance with any “merger” or “fundamental changes” covenant in the Existing
Credit Document, (E) consent to or otherwise permit any assignment or transfer of rights or interests of the Company or any of its Subsidiaries
in or with respect to the Existing Credit Document or borrowings thereunder or (F) amend or modify the stated final maturity date of any
indebtedness for borrowed money thereunder to be sooner than such maturity date as in effect as of the date hereof, amend or modify the
interest rate or undrawn commitment fees payable by the Company or its Subsidiaries under any such agreement in a manner materially adverse
to the Company and its Subsidiaries or amend or modify any such agreement to reduce the amount of the total lending commitments thereunder;
(xxiii)
enter into, modify or renew any Real Property Lease with annual lease payment obligation by the Company in excess of $2 million;
(xxiv)
any action that would result in any CPO Subsidiary or the CTA Subsidiary maintaining an amount of “net capital” or
“adjusted net capital” less than the amount required to be maintained by such CPO Subsidiary or CTA Subsidiary under the Commodity
Exchange Act and NFA rules and bylaws or as agreed to with NFA and any other Governmental Authority;
(xxv)
waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant
obligation of any current or former officer, manager, employee or independent contractor of the Employer Entities;
(xxvi)
apply for, seek or obtain any Company Permit that (y) would prevent, materially delay or materially impede the transactions contemplated
hereby or (z) would require Parent, Stone Point or their respective Affiliates to make any filing or notice with or disclosure to any
Governmental Authority;
(xxvii)
agree, authorize or commit to do any of the foregoing.
(c)
Nothing contained in this Agreement is intended to give Parent or Merger Subs or any of their Affiliates, directly or indirectly,
the right to control or direct the operations of the Company and its Subsidiaries prior to the Company Merger Effective Time. Prior to
the Company Merger Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control
and supervision over its and its Subsidiaries’ respective operations.
(d)
Subject to the terms of this Agreement, including Section 6.5 and Section 6.13, from the date of this Agreement
until the Company Merger Effective Time, none of Parent, Merger Subs or their respective Subsidiaries shall (i) knowingly take
any action that would prevent, materially delay or materially impede the consummation of the Equity Financing; (ii) acquire or
agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person (a “Specified
Acquisition”), if the entering into of a definitive agreement relating to or the consummation of such a Specified Acquisition,
as applicable, would reasonably be expected to (A) prevent, materially delay or materially impair the obtaining of, or adversely
affect in any material respect the ability of Parent or its Affiliates to procure, any authorizations, consents, Orders, declarations
or approvals of any Governmental Authority or the expiration or termination of any applicable waiting period necessary to consummate the
transactions contemplated by this Agreement, including the Mergers, or (B) materially increase the risk of any Governmental Authority
entering an Order, ruling, judgment or injunction prohibiting the consummation of the transactions contemplated by this Agreement, including
the Mergers; or (iii) take any action that would reasonably be expected to prevent, materially impair or materially delay the
consummation of the Mergers or the satisfaction of any of the closing conditions thereto.
6.2.
Acquisition Proposals; Change of Recommendation.
(a) Go-Shop
Period. Notwithstanding anything to the contrary set forth in this Agreement, during the period (the “Go-Shop
Period”) beginning on the date hereof and continuing until 11:59 p.m. Eastern Time (x) on April 8, 2023 (the
“No-Shop Period Start Date”) for any Person or “group” who is not an Excluded Party, or (y) in
respect of any Excluded Party, the Cut-Off Time, the Company and its Representatives (in each case, acting under the direction of
the Special Committee) shall have the right to directly or indirectly: (i) solicit, initiate, propose, induce, encourage or
facilitate the making, submission or announcement of, or knowingly encourage, facilitate or assist, any discussion, proposal or
inquiry that constitutes, could constitute or is reasonably expected to lead to, an Acquisition Proposal; (ii) subject to
the entry into, and solely in accordance with, an Acceptable Confidentiality Agreement, furnish to any Third Person (and its
Representatives, prospective debt and equity financing sources or their respective Representatives), any non-public information
relating to the Company and its Subsidiaries or afford to any such Third Person (and its Representatives, prospective debt and
equity financing sources or their respective Representatives) access to the business, properties, assets, books, records or other
non-public information, or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce the
making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal (or any proposal or
inquiry that could constitute or is reasonably expected to lead to an Acquisition Proposal); provided, however, that the Company
will substantially concurrently provide to Parent, or provide Parent access to, any such non-public information concerning the
Company and its Subsidiaries that is provided to any such Third Person or its Representatives but only to the extent that such
non-public information concerning the Company and its Subsidiaries was not previously provided to Parent or its Representatives;
(iii) continue, enter into, maintain, participate or engage in discussions or negotiations with any Third Person (and its
Representatives, prospective debt and equity financing sources or their respective Representatives) with respect to an Acquisition
Proposal (or any proposal or inquiry that could constitute or is reasonably expected to lead to an Acquisition Proposal); and
(iv) cooperate with or assist or participate in or facilitate any such proposals, inquiries, offers, discussions or
negotiations or any effort or attempt to make any Acquisition Proposal, including that the Company may grant a limited waiver under
any “standstill provision” or similar obligation of any Third Person with respect to the Company or any of its
Subsidiaries to allow such Third Person to submit or amend an Acquisition Proposal on a confidential basis to the Special
Committee.
(b)
No Solicitation or Negotiation. Subject to the terms of this Section 6.2, from the No-Shop Period Start
Date (or, with respect to an Excluded Party, the Cut-Off Time), until the earlier of the termination of this Agreement pursuant to Article
VIII and the Company Merger Effective Time, the Company will, and will cause its Subsidiaries and its and their respective employees,
officers and directors to, and will instruct and use its reasonable best efforts to cause each of its and their respective other Representatives
to, (x) cease and cause to be terminated any discussions or negotiations with any Person or Group that would be prohibited by
this Section 6.2(b) and cease providing any further information with respect to the Company or any Acquisition Proposal to
any such Person or Group or its or their Representatives; (y) terminate all access granted to any such Person or Group and its
or their Representatives to any physical or virtual data room (or any other diligence access); and (z) promptly following the
No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time) (and in any event within two Business Days thereof)
request in writing the prompt return or destruction of all non-public information concerning the Company and its Subsidiaries theretofore
furnished to any such Person with whom a confidentiality agreement with respect to an Acquisition Proposal was entered into at any time
within the six-month period immediately preceding the date of this Agreement, to the extent not already requested by the Company. From
and after the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time) until the earlier of the termination
of this Agreement pursuant to Article VIII and the Company Merger Effective Time, the Company agrees that, except as permitted
by this Section 6.2, neither it nor any of its Subsidiaries nor any of the employees (including any officers) and directors
of it or its Subsidiaries shall, and that it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’
other Representatives not to, directly or indirectly:
(i)
initiate, solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer
that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal (including by approving any transaction, or approving
any Person or Group becoming an “interested stockholder,” for purposes of Article Tenth of the Company’s certificate
of incorporation);
(ii) engage
in, continue or otherwise participate in any discussions or negotiations regarding, or provide any nonpublic information or data to
any Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to
lead to an Acquisition Proposal (other than to state that the terms of this Section 6.2 prohibit such discussions);
(iii)
furnish to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of
its Subsidiaries or afford to any such Person access to the business, properties, assets, books, records or other non-public information,
or to any personnel, of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected
to result in, the making, submission or announcement of, an Acquisition Proposal;
(iv)
approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal;
or
(v)
resolve or agree to do any of the foregoing.
(c)
Notwithstanding the commencement of the No-Shop Period Start Date, the Company and its Representatives (in each case, acting under
the direction of the Special Committee) may, directly or indirectly, continue to engage in the activities described in Section 6.2(b)
with respect to any Excluded Party, including with respect to any amended or modified Acquisition Proposal submitted by any Excluded Party
following the No-Shop Period Start Date, and the restrictions in Section 6.2(b) shall not apply with respect thereto until the earlier
of (A) the Cut-Off Time and (B) the time that such Person ceases to be an Excluded Party in accordance with the definition thereof.
(d) Notwithstanding
anything in Section 6.2(b) to the contrary, but subject to compliance with this Section 6.2(d), prior to the
receipt of the Requisite Company Stockholder Approvals, in response to a bona fide written Acquisition Proposal received after the
date of this Agreement that did not result from a breach of this Section 6.2 (including, for the avoidance of doubt, a
bona fide written Acquisition Proposal from a Third Person that the Company engaged with during the Go-Shop Period), the Company
(acting under the direction of the Special Committee) may, or may authorize its Representatives to, (i) provide information
in response to a request therefor by a Person or Group who has made such a bona fide written Acquisition Proposal if the Company
receives from such Person or Group so requesting such information an Acceptable Confidentiality Agreement; provided that such
Acceptable Confidentiality Agreement need not prohibit the making, or amendment, of an Acquisition Proposal; and provided, further,
that the Company shall substantially concurrently disclose (and, if applicable, provide copies of) any such information to Parent to
the extent not previously disclosed or provided; and (ii) engage or participate in any discussions or negotiations with any
Person or Group who has made such a bona fide written Acquisition Proposal, if and only to the extent that, in each such case
referred to in clause (i) or clause (ii), the Company Board (acting on the recommendation of the Special Committee) or the
Special Committee determines in good faith based on the information then available and after consultation with its financial advisor
and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in
a Superior Proposal and that the failure to take action pursuant to this Section 6.2(d) would reasonably be expected to be
inconsistent with its fiduciary duties under applicable Law. Anything in this Agreement to the contrary notwithstanding, the
Company, directly or indirectly through one or more of its Representatives, may, prior to the receipt of the Requisite Company
Stockholder Approvals, seek clarification from (but not engage in negotiations with or provide non-public information to) any Person
or Group that has made an Acquisition Proposal solely to clarify and understand any ambiguous terms and conditions of such proposal
that are necessary to provide adequate information for the Company Board or the Special Committee to make an informed determination
under this Section 6.2. During the Pre-Closing Period, the Company will not be required to enforce, and, if requested,
will be permitted to waive, any provision of any “standstill” or confidentiality agreement solely to the extent that
such provision prohibits or purports to prohibit a confidential proposal being made to the Company Board (or any committee thereof,
including the Special Committee).
(e)
No Change in Recommendation or Alternative Acquisition Agreement. Except as permitted by Section 6.2(f),
the Company Board, including the Special Committee, shall not:
(i)
withhold, withdraw, qualify or modify (in a manner adverse to Parent) (or publicly propose or resolve to withhold, withdraw, qualify
or modify (in a manner adverse to Parent)) the Company Recommendation (it being understood that it shall be considered a modification
adverse to Parent that is material if (A) any Acquisition Proposal structured as a tender or exchange offer is commenced and the
Company Board fails to publicly recommend against acceptance of such tender or exchange offer by the holders of shares of Company Stock
within ten Business Days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act or (B) any Acquisition Proposal is
publicly announced and the Company Board fails to issue a public press release within ten Business Days of such public announcement reaffirming
the Company Recommendation or stating that the Company Recommendation has not been changed), but in any event with two Business Days prior
to the Company Stockholders Meeting;
(ii)
authorize, adopt, approve, endorse, recommend or publicly declare advisable (or publicly propose to authorize, adopt, approve,
endorse, recommend or otherwise declare advisable), any Acquisition Proposal;
(iii)
fail to include the Company Recommendation in the Proxy Statement; and
(iv)
except as expressly permitted by, and after compliance with, this Section 6.2, approve or recommend, or declare advisable
or propose to enter into, or cause or permit the Company to enter into, any letter of intent, memorandum of understanding, agreement in
principle, acquisition agreement, merger agreement, joint venture agreement, share exchange agreement or other similar definitive agreement
with respect to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 6.2(a)
relating to any Acquisition Proposal) (an “Alternative Acquisition Agreement,” and any of the actions set forth
in the foregoing Section 6.2(e)(i) through Section 6.2(e)(iv), a “Change of Recommendation”).
(f)
Superior Proposal Termination; Changes of Recommendation.
(i) Notwithstanding
anything in this Agreement to the contrary, prior to the receipt of the Requisite Company Stockholder Approvals, in response to a
bona fide written Acquisition Proposal that did not arise from a breach of the obligations set forth in this Section 6.2,
either the Company Board (acting on the recommendation of the Special Committee) or the Special Committee may effect a Change of
Recommendation or cause the Company to terminate this Agreement pursuant to Section 8.1(h), if prior to taking either
such action (A) the Company Board (acting on the recommendation of the Special Committee), or the Special Committee, as
applicable, determines in good faith, after consultation with its financial advisors and outside legal counsel, that such
Acquisition Proposal is a Superior Proposal and (B) the Company shall have given four Business Days’ prior notice to
Parent that the Company has received such proposal, specifying the material terms and conditions of such proposal (including the
identity of the Person or Group making such proposal) and providing copies of the most recent versions of all proposed agreements
relating to such proposal, and that the Company intends to take such action, and during such four Business Day period (the
“Match Period”), the Company and Special Committee shall (and shall cause the Company’s officers,
employees, financial advisors, outside legal counsel and other Representatives to) be reasonably willing and available to
participate in good faith negotiations with Parent and its Representatives should Parent propose to make adjustments or revisions to
the terms and conditions of this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees; and at the end
of the Match Period, prior to taking action to effect a Change of Recommendation or terminate this Agreement pursuant to Section 8.1(h) the
Company Board (acting on the recommendation of the Special Committee) or the Special Committee determines (taking into account any
adjustment to the terms and conditions of this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees
committed to by Parent in writing in response to such Acquisition Proposal, if any) in good faith, after consultation with its
financial advisors and outside legal counsel, that the Acquisition Proposal remains a Superior Proposal and that the failure to
effect a Change of Recommendation in response to such Superior Proposal would be reasonably likely to be inconsistent with its
fiduciary obligations under applicable Law; provided that in the event of any change to the financial terms of, or any other
material amendment or material modification to, any Superior Proposal, the Company shall be required to deliver a new written notice
to Parent and to comply with the requirements of this Section 6.2(f)(i) with respect to such new written notice, except
that the advance written notice obligation set forth in this Section 6.2(f)(i) shall be reduced to two Business Days and
the Match Period in respect of such new written notice shall be two Business Days.
(ii) Notwithstanding
anything in this Agreement to the contrary, prior to the receipt of the Requisite Company Stockholder Approvals, in response to an
Intervening Event, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee may effect a
Change of Recommendation if prior to taking such action (A) the Company Board (acting on the recommendation of the Special
Committee) or the Special Committee determines in good faith, after consultation with its financial advisors and outside legal
counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations under
applicable Law, (B) the Company shall have given four Business Days’ prior notice to Parent that the Company has
determined that an Intervening Event has occurred or arisen (which notice will describe such Intervening Event in detail) and that
the Company intends to effect a Change of Recommendation, and after giving such notice and prior to effecting such Change of
Recommendation, the Company and the Special Committee negotiates (and causes the Company’s officers, employees, financial
advisors, outside legal counsel and other Representatives to negotiate) in good faith with Parent and its Representatives (to the
extent Parent wishes to negotiate) to make such adjustments or revisions to the terms and conditions of this Agreement, the Equity
Commitment Letters, the Support Agreement or the Guarantees in response thereto; and at the end of the four Business Day period,
prior to taking action to effect a Change of Recommendation, the Company Board (acting on the recommendation of the Special
Committee) or Special Committee takes into account any adjustments or revisions to the terms and conditions of this Agreement, the
Equity Commitment Letters, the Support Agreement or the Guarantees proposed by Parent in writing in response to such notice, and
determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to effect a
Change of Recommendation in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary
obligations under applicable Law; provided that in the event of any material changes regarding any Intervening Event, the Company
shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f)(ii) with
respect to such new written notice, except that the advance written notice obligation set forth in Section 6.2(f)(ii) shall
be reduced to two Business Days. “Intervening Event” means any material change, effect, event, occurrence
or development that was not known to the Special Committee or reasonably foreseeable by the Special Committee as of the date of this
Agreement (or, if known or reasonably foreseeable, only the portion of such change, effect, event, occurrence or development of
which the magnitude or material consequences were not known or reasonably foreseeable by the Special Committee as of the date of
this Agreement); provided, however, that in no event shall (x) an Acquisition Proposal (or any proposal or inquiry that
constitutes, or is reasonably expected to lead to, an Acquisition Proposal), (y) any change, in and of itself, in the price
or trading volume of the shares of Class A Common Stock (it being understood that the underlying facts giving rise or contributing
to such change may be taken into account in determining whether there has been an Intervening Event, to the extent otherwise
permitted by this definition) or (z) the fact, in and of itself, that the Company exceeds (or fails to meet) internal or
published projections or guidance or any matter relating thereto or of consequence thereof (it being understood that the underlying
facts giving rise or contributing to such change may be taken into account in determining whether there has been an Intervening
Event, to the extent otherwise permitted by this definition), constitute or be deemed to contribute to an Intervening Event.
(g)
Certain Permitted Disclosure. Anything in this Agreement to the contrary notwithstanding, the Company, the Company
Board (acting on the recommendation of the Special Committee) or the Special Committee, may, to the extent applicable, disclose to the
Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or make any “stop,
look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act
so long as any such disclosure does not include any statement that constitutes, and does not otherwise constitute, a Change of Recommendation; provided,
that the foregoing shall in no way eliminate or modify the effect that such disclosure would otherwise have under this Agreement; provided,
however, that nothing in this Section 6.2(g) or any other provision of this Agreement shall be construed to permit the Company
to effect any Change of Recommendation other than in accordance with and to the extent expressly permitted by Section 6.2(f).
(h) Notice.
From the date hereof until the No-Shop Period Start Date (or with respect to an Excluded Party, the Cut-Off Time), the Company
agrees that it will promptly (and, in any event, within twenty-four hours) notify Parent in writing if any proposals, indications of
interest or offers with respect to an Acquisition Proposal are received by it or any of its Representatives and shall provide, in
connection with such notice, the material terms and conditions of any such proposal, indication of interest (including, for the
avoidance of doubt, the form and amount of consideration and proposed financing arrangements), or offer (including the identity of
the Person or Group making such proposal, indication of interest or offer and, if applicable, copies of any written proposal,
indication of interest or offer, including proposed agreements or commitment letters) and thereafter shall keep Parent informed, on
a prompt basis (and, in any event, within twenty-four hours), of any material changes to the status and terms of any such proposal
or offer (including any amendments thereto). From the No-Shop Period Start Date (or with respect to an Excluded Party, the Cut-Off
Time) until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company Merger
Effective Time, the Company agrees that it will promptly (and, in any event, within twenty-four hours) notify Parent in writing if
any inquires, proposals, indications of interest or offers with respect to an Acquisition Proposal are received by, any non-public
information is requested from, or any discussions or negotiations regarding an Acquisition Proposal are sought to be initiated or
continued with, it or any of its Representatives and shall provide, in connection with such notice, the material terms and
conditions of any inquiry, proposal (including, for the avoidance of doubt, the form and amount of consideration and proposed
financing arrangements), or offer (including the identity of the Person or Group making such inquiry, proposal, indication of
interest or offer and, if applicable, copies of any written request, proposal, inquiry, indication of interest or offer, including
proposed agreements, or commitment letters) and thereafter shall keep Parent informed, on a prompt basis (and, in any event, within
twenty-four hours), of any material changes to the status and terms of any such proposal, inquiry, indication of interest or offer
(including any amendments thereto and any new, amended or revised written materials relating thereto provided to the Company or its
Representatives) and any material changes to the status of any such discussions or negotiations.
(i)
Breach by Representatives. The Company agrees that any breach of this Section 6.2 by any director, officer
or other Representative of the Company will be deemed to be a breach of this Section 6.2 by the Company. The Company will not authorize,
direct or knowingly permit any consultant or employee of the Company to breach this Section 6.2, and upon becoming aware of any
breach or threatened breach of this Section 6.2 by a Representative of the Company, shall use its reasonable best efforts to stop
such breach or threatened breach.
6.3.
Proxy Statement Filing; Schedule 13e-3; Information Supplied.
(a)
The Company shall prepare and file with the SEC, as promptly as reasonably practicable after the date of this Agreement (but in
no event later than three Business Days after the No-Shop Period Start Date, or if applicable, the Cut-Off Time), a proxy statement in
preliminary form relating to the Company Stockholders Meeting (such proxy statement, including any amendment or supplement thereto, the
“Proxy Statement”).
(b)
The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly prepare
and file with the SEC a Rule 13e-3 Transaction Statement on Schedule 13e-3 (such transaction statement, including any amendment or supplement
thereto, the “Schedule 13e-3”) relating to the transactions contemplated by this Agreement.
(c) The
Company shall promptly notify Parent, and Parent shall promptly notify the Company, as applicable, of the receipt of all comments
from the SEC with respect to the Proxy Statement or Schedule 13e-3 and of any request by the SEC for any amendment or supplement
thereto or for additional information and shall promptly provide to the other Party copies of all correspondence between such Party
or any of its Representatives and the SEC with respect to the Proxy Statement or Schedule the Schedule 13e-3, as applicable. Each of
the Company and Parent shall provide Parent and the Company, as applicable, and their respective outside legal counsel and other
Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such
discussions or meetings that relate to the Schedule 13e-3). The Company and Parent shall use their respective reasonable best
efforts to promptly provide responses to the SEC with respect to all comments received on the Proxy Statement and the Schedule 13e-3
from the SEC, and the Company shall cause the definitive Proxy Statement and Schedule 13e-3 to be mailed to the stockholders of the
Company as promptly as possible after confirmation from the SEC that it will not review, or that it has completed its review of, the
Proxy Statement, which confirmation will be deemed to occur if the SEC has not affirmatively notified the Company prior to the tenth
calendar day after filing the Proxy Statement that the SEC will or will not be reviewing the Proxy Statement (such date, the
“SEC Clearance Date”); provided, that the Company shall not be required to disseminate the Proxy Statement
to its stockholders prior to the No-Shop Period Start Date (or, if applicable, the Cut-Off Time).
(d)
The Company agrees, as to itself and its Subsidiaries, that the Proxy Statement will comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations thereunder. The Company and Parent agree, as to themselves and their Affiliates,
that the Schedule 13e-3 will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations
thereunder. The Company, Parent and Merger Subs shall ensure that none of the information supplied by it for inclusion in the Proxy Statement
or Schedule 13e-3 will, at the date of mailing to stockholders of the Company or at the time of the Company Stockholders Meeting, contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company assumes no responsibility
with respect to information supplied in writing by or on behalf of Parent, its Affiliates or its or their respective Representatives for
inclusion or incorporation by reference in the Proxy Statement or Schedule 13e-3. If at any time prior to the Company Stockholders Meeting,
any information relating to the Company or Parent, or any of their respective Affiliates or its or their respective Representatives, should
be discovered by a Party, which information should be set forth in an amendment or supplement to the Proxy Statement or Schedule 13e-3,
as applicable, so that either the Proxy Statement or Schedule 13e-3 would not include any misstatement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the
Party that discovers such information shall as promptly as practicable following such discovery notify the other Party or Parties (as
the case may be) and after such notification, as and to the extent required by applicable Law, (i) the Company shall promptly
prepare (with the assistance of Parent as provided for in this Section 6.3) an amendment or supplement to the Proxy Statement,
(ii) the Company and Parent shall promptly prepare an amendment or supplement to the Schedule 13e-3 or (iii) the Company
shall cause the Proxy Statement or Schedule 13e-3 as so amended or supplemented to be filed with the SEC and to be disseminated to its
stockholders.
(e) The
Company shall provide Parent with a reasonable opportunity to review drafts of the Proxy Statement and any other documents related
to the Company Stockholders Meeting and will consider in good faith any comments provided by Parent in connection with such review.
The Company and Parent shall (i) provide each other with a reasonable opportunity to review drafts of the Schedule 13e-3
prior to filing the Schedule 13e-3 with the SEC and (ii) consider in good faith all comments thereto reasonably proposed by the
other Party, its outside legal counsel and its other Representatives.
6.4.
Company Stockholders Meeting. The Company will take, in accordance with applicable Law and its certificate
of incorporation and bylaws, all action necessary to convene a meeting of its stockholders (including any adjournment, recess, postponement
or other delay thereof, the “Company Stockholders Meeting”) as promptly as reasonably practicable after the
SEC Clearance Date (which Company Stockholders Meeting shall in no event be scheduled initially for a date that is later than the 40th
day following the first mailing of the Proxy Statement to the holders of the shares of Company Stock without the prior written consent
of Parent), to consider and vote upon the adoption of this Agreement and to cause such vote to be taken, and shall not postpone or adjourn
such meeting, except to the extent advised by counsel to be necessary to comply with Law or pursuant to the following sentence. Notwithstanding
anything to the contrary in this Agreement, (a) the Company (acting on the recommendation of the Special Committee) may (and if
requested by Parent on no more than two occasions, shall for a reasonable period of time not to exceed ten Business Days in the aggregate)
adjourn, recess, postpone or otherwise delay the Company Stockholders Meeting for a reasonable period to solicit additional proxies, if
the Company or Parent, as applicable, reasonably believes there will be insufficient shares of Company Stock represented (either in person
or by proxy) to constitute a quorum necessary either to conduct the business of the Company Stockholders Meeting or to obtain the Requisite
Company Stockholder Approvals (it being understood that the Company may not postpone or adjourn the Company Stockholders Meeting more
than two times pursuant to this clause (a) without Parent’s prior written consent) and (b) the Company (acting on the recommendation
of the Special Committee) may adjourn, recess, postpone or otherwise delay the Company Stockholders Meeting to the extent necessary to
ensure that any supplement or amendment to the Proxy Statement that is required by applicable Law is provided to the stockholders of the
Company within a reasonable amount of time in advance of the Company Stockholders Meeting; provided that, in the case of each of the foregoing
clauses (a) and (b), unless agreed in writing by the Company and Parent, any single such adjournment, recess or postponement shall be
for a period of no more than ten Business Days. Subject to Section 6.3(e), the Company Board shall include the Company Recommendation
in the Proxy Statement and shall use reasonable best efforts to obtain the Requisite Company Stockholder Approvals. Subject to the provisions
of this Agreement, the Company will conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act in a manner
to enable the record date for the Company Stockholder Meeting to be set so that the Company Stockholder Meeting can be held promptly following
the effectiveness of the Proxy Statement.
6.5.
Efforts; Cooperation; Antitrust Matters.
(a) Subject
to the terms of this Agreement, each of the Company, Parent and Merger Subs shall use reasonable best efforts to: (i) take,
or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other Parties in
doing, all things necessary, proper or advisable under applicable Laws to cause the conditions precedent set forth in Article
VII to be satisfied and consummate and make effective the Mergers and any other transactions contemplated by this Agreement when
required in accordance with Article VII as promptly as reasonably practicable and in any event prior to the Outside Date;
(ii) obtain from any Governmental Authority any consents, licenses, permits, waivers, approvals, authorizations, clearances
or Orders advisable or required to be obtained by Parent, the Company or any of their respective controlled Affiliates, including
under the Antitrust Laws (including by making an appropriate response to requests from any such Governmental Authorities);
(iii) obtain from any clients of the Company’s partner firms any consents, waivers, approvals, authorizations, or
clearances advisable or required to be obtained by such partner firms; (iv) avoid or defend against, as applicable, any
Action by any Governmental Authority, in connection with the authorization, execution and delivery of this Agreement and the
consummation of the Mergers or any other transactions contemplated by this Agreement, including the Merger; (v) as promptly
as reasonably practicable, and in any event within ten Business Days after the date of this Agreement, make or cause to be made all
necessary filings under the HSR Act, and as promptly as reasonably practicable after the date of this Agreement submit all other
notifications, filings and registrations required or advisable under the Antitrust Laws, and thereafter promptly make an appropriate
response to any requests for additional information and documentary material that may be requested pursuant to any Antitrust Law and
(vi) as promptly as reasonably practicable, make or cause to be made any other required or advisable registrations,
declarations, submissions and filings with respect to the Mergers or any other transactions contemplated by this Agreement required
under the Exchange Act, any other applicable federal or state securities Laws, and any other applicable Law. The Company and its
Subsidiaries shall reasonably cooperate to facilitate the receipt by Parent and its Affiliates of any approvals or to take any other
reasonable actions required to permit Parent and its Affiliates (including the Company and its Subsidiaries following the Closing)
to operate in compliance with applicable Law following the consummation of the Mergers.
(b) Without
limiting the generality of anything contained in this Section 6.5, Parent and the Company shall: (i) give the
other Parties prompt notice of the making or commencement of any request or proceeding by or before any Governmental Authority with
respect to the Mergers or any other transactions contemplated by this Agreement; (ii) keep the other Parties informed as to
the status of any such request or proceeding; (iii) give the other Parties notice and an opportunity to participate in any
substantive communication made to the United States Federal Trade Commission (the “FTC”), the Antitrust
Division of the United States Department of Justice (the “DOJ”), or any other domestic, foreign or
supranational Governmental Authority pursuant to any Antitrust Laws regarding the Mergers or any other transactions contemplated by
this Agreement and (iv) promptly notify the other Parties of any communication from the FTC, the DOJ or any other domestic,
foreign or supranational Governmental Authority pursuant to any Antitrust Laws regarding the Mergers or any other transactions
contemplated by this Agreement. Subject to applicable Laws relating to the exchange of information, Parent and the Company shall
have the right to review in advance, and each will consult with the other on and consider in good faith the views of the other in
connection with, any filing made with, or substantive written materials submitted or substantive communication made to any
Governmental Authority pursuant to any Antitrust Laws in connection with the Mergers or any other transactions contemplated by this
Agreement (including the Proxy Statement and the Schedule 13e-3). In addition, except as may be prohibited by any Governmental
Authority or by any applicable Law, each Party will permit authorized representatives of the other Parties to be present at each
non-ministerial meeting, conference, videoconference, or telephone call and to have access to and be consulted in connection with
any substantive presentation, letter, white paper, or proposal made or submitted to any Governmental Authority pursuant to any
Antitrust Laws in connection with such request or proceeding. In exercising the foregoing rights, each of the Company and Parent
shall act reasonably and as promptly as practicable. The Company and Parent may, as each deems advisable and necessary, reasonably
designate any competitively sensitive material provided to the other under this Section 6.5 as “outside counsel
only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient
and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is
obtained in advance from the source of the materials (the Company or Parent, as the case may be); provided that materials provided
pursuant to this Section 6.5 may be redacted (x) to remove references concerning the valuation of the Company,
(y) as necessary to comply with contractual obligations and (z) as necessary to address reasonable privilege
concerns.
(c)
Subject to applicable Laws and as required by any Governmental Authority, the Company, on the one hand, and Parent, on the other
hand, each shall keep the other apprised of the status of matters relating to completion of the Mergers and the other transactions contemplated
hereby, including promptly furnishing the other with copies of (i) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with the Mergers or the other transactions contemplated by this Agreement
or (ii) upon receiving any material notice or other material communication from any third party whose consent or approval is
required for consummation of the Mergers or the other transactions contemplated by this Agreement or any Governmental Authority in each
case in connection with such consents or the transactions contemplated by this Agreement.
(d)
If any objections are asserted with respect to the transactions contemplated by this Agreement under the HSR Act or any other applicable
Antitrust Laws, or if any lawsuit or other proceeding, whether judicial or administrative, is instituted (or threatened to be instituted),
including any proceeding by any Governmental Authority or private party, challenging the Mergers or any other transactions contemplated
by this Agreement as violative of any Antitrust Law or which would otherwise prohibit or materially impair or delay in connection with
any Antitrust Law the consummation of the Mergers or any other transactions contemplated by this Agreement, each of Parent and the Company
shall (and shall cause their respective Subsidiaries to) use their respective reasonable best efforts to resolve any such objections.
(e) In
furtherance, and not in limitation, of the foregoing, Parent shall (and if, and only if, requested by Parent, the Company shall)
take all such further action as may be necessary to avoid or eliminate each and every impediment under any Antitrust Law so as to
enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including proposing,
negotiating, committing and effecting, by consent decree, hold separate Order, or otherwise, to (i) sell, divest, dispose of
or otherwise hold separate (including by establishing a trust or otherwise), any of the businesses, assets or properties of Parent,
the Company or their respective Subsidiaries and (ii) otherwise take or commit to take actions that after the Closing would
limit Parent’s, the Company’s or any of its Subsidiaries’ freedom of action with respect to, or its ability to
operate or retain any of the businesses, assets or properties of Parent, the Company or any of their respective Subsidiaries;
provided, however, that nothing in this Agreement shall require Parent or the Company to take or agree to take any action of the
types referred to in the foregoing clause (i) and clause (ii) unless it is binding on or otherwise applicable to Parent or
the Company only from and after the Company Merger Effective Time in the event that the Closing occurs; provided, further, however,
that nothing in this Agreement shall require Parent or Merger Subs to take or agree to any action of the types referred to in
clause (i) or clause (ii) in this Section 6.5(e) if such action relates to any Affiliate of Parent (other than
Merger Subs, Company and their respective Subsidiaries).
(f)
For purposes of this Agreement, “Antitrust Law” means the Sherman Antitrust Act of 1890, as amended,
the Clayton Antitrust Act of 1914, as amended, the HSR Act, the Federal Trade Commission Act of 1914, as amended, and all other federal,
state, foreign or supranational statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws, including
any antitrust, competition, trade or foreign investment Laws and regulations 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 competition through merger or acquisition,
or (ii) regulate foreign investments.
6.6.
Information; Access and Reports.
(a)
The Company and Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Affiliates,
directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement,
the Schedule 13e-3 or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective
Affiliates to any Governmental Authority in connection with the Mergers and any other transactions contemplated by this Agreement.
(b) Subject
to applicable Law, upon reasonable notice, the Company shall (and shall cause its Subsidiaries to) afford Parent’s officers
and other authorized Representatives reasonable access, during normal business hours and consistent with applicable Law, upon
reasonable advance notice, from the date of this Agreement until the earlier of the Company Merger Effective Time and the
termination of this Agreement in accordance with Article VIII, to its employees and other personnel and contracts and other
books and records (other than any such matters that relate to the negotiation and execution of this Agreement (including with
respect to the consideration or valuation of the Mergers or any financial or strategic alternatives thereto) or, subject to Section
6.2, any Acquisition Proposal or Superior Proposal); provided that the Company shall not be required to afford such access or
furnish such information if it would unreasonably disrupt the operations of the Company or any of its Subsidiaries and no
investigation pursuant to this Section 6.6 shall affect or be deemed to modify any representation or warranty made by
the Company herein, and provided, further, that the foregoing shall not require the Company (i) to permit any inspection, or
to disclose any information, that would reasonably be expected to result in the disclosure of any trade secrets of third parties or
violate any of its obligations with respect to confidentiality if the Company shall have used reasonable best efforts to obtain the
consent of such third party to such inspection or disclosure or (ii) to disclose any privileged information of the Company
or any of its Subsidiaries; provided that in the event the Company does not disclose certain information pursuant to the foregoing
clause (i) and clause (ii), at Parent’s reasonable request the Parties shall use commercially reasonable efforts to
implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis
for the non-disclosure to the greatest extent reasonably possible, including by arrangement of appropriate clean room procedures,
redaction of text from documents or entry into a customary joint defense agreement with respect to any information to be so
provided. Notwithstanding the foregoing, Parent and its Representatives shall not be permitted to perform any invasive on-site
procedures (including any invasive on-site study) with respect to any property of the Company or its Subsidiaries without the
Company’s prior written consent. All requests for information made pursuant to this Section 6.6 shall be directed
to the executive officer or other Person designated by the Company. The Non-Disclosure Agreement, dated as of July 13, 2022, by and
between the Company and Clayton, Dubilier & Rice, LLC (the “Confidentiality Agreement”), shall apply
with respect to information furnished by the Company, its Subsidiaries and their respective Representatives hereunder.
(c)
To the extent that any of the information or material furnished pursuant to this Section 6.6 or otherwise in accordance
with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable
privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they
have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing
of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued
protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled
to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection
under these privileges, this Agreement, and under the joint defense doctrine.
(d)
Notwithstanding anything to the contrary in this Section 6.6, the Company shall not be deemed to have breached this
Section 6.6 if the Company cannot provide to Parent access of the Company pursuant to this Section 6.6 as a result
of COVID-19 or the COVID-19 Measures; provided that for so long as any applicable COVID-19 Measures are in effect, the Company shall,
and shall cause its Subsidiaries to, use commercially reasonable efforts to provide access to Parent and its Representatives under this
Section 6.6 through virtual or other remote means.
6.7.
Stock Exchange Delisting. The Company and Parent shall cooperate to take, or cause to be taken, all actions,
and do or cause to be done all things, reasonably necessary, proper or advisable under applicable Laws and rules and policies of Nasdaq
to enable the delisting by the Surviving Corporation of the shares of Class A Common Stock from Nasdaq and the deregistration of the shares
of Class A Common Stock under the Exchange Act as promptly as practicable after the Company Merger Effective Time.
6.8. Publicity.
The initial press release regarding the Mergers shall be a joint press release of Parent and the Company reasonably acceptable to
Parent and the Company. Thereafter, neither the Company nor Parent, nor any of their respective Affiliates or Representatives, shall
issue any press release or make any other public announcement or public statement (to the extent not previously publicly disclosed
or made in accordance with this Agreement) with respect to this Agreement or the Mergers or any other transactions contemplated by
this Agreement without consulting with each other and providing meaningful opportunity for review and giving due consideration to
reasonable comment by the other Party, except (a) as such press release or other public announcement may be required by
applicable Law, in which case the Party required to issue the release or make the announcement shall use commercially reasonable
efforts to provide the other Party with a reasonable opportunity to review and comment on such release or announcement in advance of
its issuance and shall give reasonable and good-faith consideration to any such comments proposed by the other Party,
(b) subject to Section 6.2, if applicable under the circumstances, in connection with a Change of Recommendation or
Acquisition Proposal or (c) any disclosure of information concerning this Agreement in connection with any dispute between the
Parties regarding this Agreement. Notwithstanding anything to the contrary in this Section 6.8, (i) each of the
Parties may make public statements in response to questions by the press, analysts, investors, business partners or those attending
industry conferences or financial analyst conference calls, so long as any such statements (x) are consistent with previous
press releases, public disclosures or public statements made jointly by Parent and the Company or to the extent that they have been
reviewed and previously approved by both Parent and the Company and (y) do not reveal
material, nonpublic information regarding the other Parties, the Mergers or the other transactions contemplated hereby and
(ii) Parent, Merger Subs and their respective Affiliates may, without consultation or consent, make ordinary course
disclosure and communication to existing or prospective general or limited partners, equity holders, members, managers and investors
of such Person or any Affiliates of such Person, in each case who are subject to customary confidentiality restrictions.
6.9.
Employee Benefits.
(a)
Parent agrees that each employee as of immediately prior to the Closing who continues to be employed with any of the Employer Entities
immediately following the Closing (each such employee, a “Continuing Employee”) shall, during the period commencing
on the Closing Date and ending on the first anniversary thereof (or the date of termination of employment of the relevant Continuing Employee,
if sooner), be provided with (i) a base salary or base wage no less than the base salary or base wage provided to such Continuing
Employee by the Employer Entities immediately prior to the Company Merger Effective Time, (ii) annual cash bonus opportunities that
are no less favorable than the annual cash bonus opportunities as in effect for such Continuing Employee immediately prior to the Company
Merger Effective Time and (iii) employee benefits (excluding any equity or equity-based, nonqualified deferred compensation, severance,
bonus, change of control, retention, incentive, transaction, defined benefit pension, post-employment or retiree health and welfare benefits
(collectively, the “Excluded Benefits”)) that are substantially comparable in the aggregate to the employee
benefits (other than the Excluded Benefits) provided to such Continuing Employee immediately prior to the Company Merger Effective Time.
(b) Parent
shall use commercially reasonable efforts to cause (i) any pre-existing conditions or limitations and eligibility waiting
periods under any group health plans of Parent or its Affiliates in which Continuing Employees participate in the year in which the
Closing Date occurs to be waived with respect to the Continuing Employees and their eligible dependents to the extent such
conditions or limitations were waived or satisfied under the corresponding Benefit Plan, (ii) the amount of eligible
expenses paid by each Continuing Employee and his or her eligible dependents during the portion of the plan year ending on the
Closing Date that were credited to deductible and maximum out-of-pocket co-insurance requirements under the group health Benefit
Plans to be credited for purposes of satisfying the corresponding deductible and maximum out-of-pocket co-insurance requirements
under the corresponding benefit plans of Parent and its Affiliates for the applicable plan year and (iii) any of its (or
its Affiliates’) employee benefit plans (including disability pay continuation plans) in which the Continuing Employees are
entitled to participate to take into account for purposes of eligibility, vesting (other than with respect to future equity awards)
and future vacation benefit accrual thereunder, service by such Continuing Employees to the Employer Entities or predecessors as if
such service were with Parent, to the same extent and for the same purpose as such service was credited under a comparable Benefit
Plan, in each case, except to the extent it would result in a duplication of compensation or benefits.
(c)
The Employer Entities shall be permitted to pay such remaining amounts under the Company’s annual bonus plan in respect of
the 2022 fiscal year in the ordinary course of business consistent with past practice at such time annual bonuses have historically been
paid by the Employer Entities, but no later than the Closing Date. Parent shall cause the Surviving Corporation and its Subsidiaries to
honor the Company’s annual bonus plans in respect of the 2023 fiscal year (the “2023 Annual Bonus Plans”).
To the extent the Closing occurs prior to the payment of bonuses in respect of the 2023 fiscal year, Parent shall cause the Surviving
Corporation to pay annual bonuses to participants in the 2023 Annual Bonus Plans following the end of the 2023 fiscal year based
upon actual performance for the 2023 fiscal year, but not less than the Pro Rata Bonus Amount applicable for each participant, in
each case, subject to the participant’s continued employment with the Surviving Corporation or any of its Subsidiaries through the
payment date; provided that, if the participant’s employment is terminated by the Surviving Corporation without cause (as
determined by the Surviving Corporation in good faith) prior to such payment date, the participant will, subject to such participant’s
execution and non-revocation of a general release of claims in favor of the Surviving Corporation and its Subsidiaries, remain eligible
to receive the Pro Rata Bonus Amount.
(d)
The Parties hereby acknowledge and agree that the transactions contemplated by this Agreement shall constitute a “change
in control,” “change of control” or term or concept of similar import of the Company and its Subsidiaries under the
terms of the Benefit Plans.
(e)
Notwithstanding the foregoing, nothing contained in this Agreement shall (i) be treated as an establishment or amendment
of any particular Benefit Plan or any other benefit or compensation plan, program, policy, agreement or arrangement, (ii) prevent
Parent, the Surviving Corporation or any of their Affiliates from amending or terminating any of their benefit or compensation plans,
programs, policies, agreements or arrangements or, after the Company Merger Effective Time, any Benefit Plan, in each case, in accordance
with their terms, (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to retain the employment of any
particular employee or (iv) create any third-party beneficiary rights, including for the benefit of any current or former
employee, director, manager, officer or consultant of the Company or any of its Subsidiaries or any of the Employer Entities, any beneficiary
or dependent thereof, or any collective bargaining representative thereof, with respect to this Section 6.9 or any compensation,
terms and conditions of employment or benefits that may be provided to any Continuing Employee by Parent, the Surviving Corporation or
any of their Affiliates or under any benefit plan that Parent, the Surviving Corporation or any of their Affiliates may maintain.
6.10. Expenses.
Whether or not the Mergers are consummated, all costs and expenses incurred in connection with the preparation, negotiation,
execution and performance of this Agreement and the Mergers and any other transactions contemplated by this Agreement, including all
fees and expenses of its Representatives, shall be paid by the Party incurring such expense, except that expenses incurred in
connection with the filing fee for the Proxy Statement and Schedule 13e-3 and printing and mailing the Proxy Statement and Schedule
13e-3 shall be borne by Parent.
6.11.
Indemnification; Directors’ and Officers’ Insurance.
(a)
From and after the Company Merger Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold
harmless, to the fullest extent permitted under applicable Law (and Parent shall also advance expenses as incurred to the fullest extent
permitted under applicable Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances
if it is ultimately determined that such Person is not entitled to indemnification), each present and former director and officer of the
Company and its Subsidiaries (each an “Indemnified Party” and collectively, the “Indemnified Parties”)
, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities
incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative,
arising out of or related to (i) their service as such or their service at the request of the Company or its Subsidiaries as a
director, officer, employee, member, trustee or fiduciary of any other corporation, partnership or joint venture, trust, employee benefit
plan or other enterprise or (ii) services performed by such Indemnified Parties at the request of the Company or its Subsidiaries,
in each case at or prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective
Time, including with respect to (A) the Mergers and any other transactions contemplated by this Agreement and (B) actions
to enforce this Section 6.11 or any other indemnification or advancement right of any Indemnified Party. Notwithstanding anything
to the contrary in this Agreement, none of Parent, the Surviving Corporation or any of their respective Affiliates will settle, compromise
or consent to the entry of any judgment with respect to, or otherwise seek the termination of, any legal proceeding for which indemnification
may be sought by an Indemnified Party pursuant to this Agreement unless such settlement, compromise, consent or termination includes an
unconditional release of all Indemnified Parties from all liability arising out of such Indemnified Party proceeding. Any determination
required to be made with respect to whether the conduct of any Indemnified Party complies or complied with any applicable standard shall
be made by independent legal counsel selected by the Surviving Corporation (which counsel shall be reasonably acceptable to such Indemnified
Party), the fees and expenses of which shall be paid by the Surviving Corporation or Parent.
(b) Parent
and Merger Subs agree that all rights to exculpation or indemnification for acts or omissions occurring at or prior to the Company
Merger Effective Time existing as of the date of this Agreement in favor of the Indemnified Parties, any principals of the
Company’s partner firms or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of
such Indemnified Parties and any principals of the Company’s partner firms, as provided in the Company’s or each of its
Subsidiaries’ respective certificates of incorporation or bylaws (or comparable organizational or governing documents) or in
any Contract, shall survive the Mergers and the transactions contemplated by this Agreement and shall continue in full force and
effect in accordance with their terms. After the Company Merger Effective Time, Parent and the Surviving Corporation shall (and
Parent shall cause the Surviving Corporation to) fulfill and honor such obligations to the maximum extent that the Company or
applicable Subsidiary would have been permitted to fulfill and honor them by applicable Law. In addition, for six years following
the Company Merger Effective Time, Parent shall and shall cause the Surviving Corporation to cause the Charter and Bylaws to contain
provisions with respect to indemnification and exculpation that are at least as favorable as the indemnification and exculpation
provisions contained in the certificates of incorporation and bylaws of the Company immediately prior to the Company Merger
Effective Time. During such six-year period or such period in which an Indemnified Party is asserting a claim for indemnification
pursuant to this Section 6.11, whichever is longer, such provisions shall not be amended, repealed or otherwise modified in
any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or
omissions occurring or alleged to have occurred at or prior to the Company Merger Effective Time, except as required by applicable
Law.
(c) Prior
to the Company Merger Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving
Corporation as of the Company Merger Effective Time to, obtain and fully pay the premium for “tail” insurance policies
for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing
directors’ and officers’ insurance policies and (ii) the Company’s existing fiduciary liability insurance
policies, in each case, for a claims reporting or discovery period of at least six years from and after the Company Merger Effective
Time (the “Tail Period”) from one or more insurance carriers with the same or better credit rating as the
Company’s insurance carrier as of the date of this Agreement (or, if no such policies are available from insurance carriers
with such credit rating, from insurance carriers with the next-highest credit rating then capable of providing such policies) with
respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively,
“D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as
favorable to the insureds as the Company’s existing policies with respect to any actual or alleged error, misstatement,
misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer or principal of the
Company or any of its Subsidiaries by reason of his or her serving in such capacity that existed or occurred at or prior to the
Company Merger Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby);
provided that in no event shall the Company expend, and in no event shall Parent or the Surviving Corporation be required to expend,
for such “tail” insurance policy an aggregate amount in excess of 300% of the annual premium paid by the Company for the
calendar year immediately preceding the date of this Agreement (such 300% amount, the “Maximum Premium”);
provided, further, that if the amount of such “tail” insurance policy exceeds the Maximum Premium, the Surviving
Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium. If the Company
and the Surviving Corporation for any reason do not obtain such “tail” insurance policies, the Surviving Corporation
shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for the Tail Period the D&O Insurance
in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable
to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or the Surviving Corporation
shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for the Tail Period with terms,
conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s
existing policies as of the date of this Agreement; provided that in no event shall Parent or the Surviving Corporation be required
to expend for all such policies pursuant to this sentence an annual premium amount in excess of the Maximum Premium; and provided,
further, that if the annual premiums of such insurance coverage exceeds such applicable amount, the Surviving Corporation shall
obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium.
(d)
The provisions of this Section 6.11 shall survive the Closing and are intended to be for the benefit of, and enforceable
by, each Indemnified Party and principal of the Company’s partner firms, and nothing in this Agreement shall affect, and the rights
of each Indemnified Party and principal of the Company’s partner firms under this Section 6.11 shall be in addition
to, any indemnification rights that any such Indemnified Party or principal of the Company’s partner firms may have under the certificates
of incorporation or bylaws of the Company or any of its Subsidiaries or any Contract or applicable Law. Notwithstanding anything in this
Agreement to the contrary, the obligations under this Section 6.11 shall not be terminated, amended, waived or otherwise modified
in such a manner as to adversely affect any Indemnified Party or principal of the Company’s partner firms without the consent of
such Indemnified Party or principal. The obligations of the Surviving Corporation, Parent and their respective Subsidiaries pursuant to
this Section 6.11 are joint and several. The rights of the Indemnified Parties and principals of the Company’s partner firms
pursuant to this Section 6.11 will be in addition to, and not in substitution for, any other rights that such persons may have
pursuant to (i) the Charter and Bylaws, (ii) the similar organizational documents of the Subsidiaries of the Company, (iii)
any and all indemnification agreements entered into with the Company or any of its Subsidiaries made available to Parent, or (iv)
applicable Law.
(e)
In the event that Parent or the Surviving Corporation (or any of their respective successors or assigns) shall consolidate or merge
with any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger, or transfers
at least 50% of its properties and assets to any other Person, then in each case proper provision shall be made so that the continuing
or surviving corporation or entity (or its successors or assigns, if applicable), or transferee of such assets, as the case may be, shall
assume the obligations set forth in this Section 6.11.
6.12.
Stockholder Litigation. The Company shall promptly notify Parent of any stockholder litigation against it
or any of its Representatives arising out of or relating to this Agreement, the Mergers or any other transactions contemplated by this
Agreement (including by providing copies of all litigation documents served on the Company) and shall keep Parent reasonably informed
regarding any such stockholder litigation. Until the termination of this Agreement in accordance with Article VIII, the Company
shall (a) provide Parent an opportunity to review and to propose comments to all filings or written responses to be made by the Company
in connection with any stockholder litigation against the Company and its directors relating to any transaction contemplated by this Agreement
and consult with Parent with respect to the defense, settlement or compromise of any such stockholder litigation, and the Company shall
give reasonable and good-faith consideration to any comments proposed by Parent and (b) give Parent the opportunity to participate
(but not to control), at Parent’s expense, in the defense, settlement or prosecution of any such stockholder litigation. In no event
shall the Company enter into or agree to any settlement with respect to such stockholder litigation without Parent’s consent, such
consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding anything to the contrary in this Section 6.12,
any Action relating to the Dissenting Shares will be governed by Section 4.4(f).
6.13.
Equity Financing.
(a) No
Amendments to Equity Commitment Letters. Subject to the terms and conditions of this Agreement, Parent (without the prior
written consent of the Company) will not permit any amendment or modification to be made to, or any waiver of any provision or
remedy pursuant to, the Equity Commitment Letters if such amendment, modification or waiver would, or would reasonably be expected
to, (i) reduce the aggregate amount of the Equity Financing; (ii) impose new or additional conditions or contingencies of the
funding of the Equity Financing; (iii) otherwise expand, amend or modify any of the conditions to the receipt of the Equity
Financing or any other terms to the Equity Financing in a manner that, in each case with respect to this clause (iii), would
reasonably be expected to (A) delay or prevent the occurrence of the Closing or (B) make the timely funding of the Equity Financing,
or the satisfaction of the conditions to obtaining the Equity Financing, less likely to occur in any material respect; or (iv)
adversely impact the ability of Parent or the Company, as applicable, to enforce its rights against the other parties to the Equity
Commitment Letters. Any reference in this Agreement to (1) the “Equity Financing” will include the financing
contemplated by the Equity Commitment Letters as amended or modified in compliance with this Section 6.13; and (2) the
“Equity Commitment Letters” will include such document as amended or modified in compliance with this Section
6.13.
(b)
Taking of Necessary Actions.
(i)
Equity Financing not a Closing Condition. The Guarantors, Parent and Merger Subs each acknowledge and agree that
obtaining the Equity Financing is not a condition to the Closing or the enforcement of the Guarantees. If the Equity Financing has not
been funded and to the extent required pursuant to Section 9.5(b), Parent and the Merger Sub will each continue to be obligated,
subject to the satisfaction or waiver (to the extent waivable) of the conditions set forth in Article VII, to consummate the Mergers,
including by taking the actions required to be taken by Parent and the Merger Subs pursuant to Section 6.13(b)(i).
(ii)
Equity Commitment Letters. Subject to the terms and conditions of this Agreement, Parent and Merger Subs will use
reasonable best efforts to (A) maintain in effect the Equity Commitment Letters in accordance with the terms and subject to the conditions
thereof; (B) comply with its obligations under the Equity Commitment Letters; (C) satisfy, on a timely basis, the conditions to funding
the Equity Financing in the Equity Commitment Letters, if any, that are within its control; (D) consummate the Equity Financing at
or prior to the Closing, including causing Guarantors to fund the Equity Financing at the Closing; and (E) enforce its rights pursuant
to the Equity Commitment Letters, on the terms and subject to the conditions set forth therein. Notwithstanding anything in this Agreement
to the contrary, nothing herein shall require, and in no event shall the “reasonable best efforts” of Parent or Merger Subs
be deemed or construed to require, Parent or Merger Subs to (x) seek the Equity Financing from any source other than those counterparty
to, or in any amount in excess of that contemplated by, the Equity Commitments Letters, (y) incur or pay any fees or other amounts in
excess of those contemplated by the Equity Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise)
or (z) waive any of the conditions to the Closing set forth in Article VII.
(c) Information
from Parent. Parent and Merger Subs shall give the Company prompt notice following Parent or Merger Subs obtaining knowledge
(A) of any material breach (or threatened material breach) or material default (or any event or circumstance that, with or
without notice or lapse of time, or both, would reasonably be expected to give rise to any material breach or material default) by
any party to any of the Equity Commitment Letters; (B) of any dispute among any parties to any of the Equity Commitment
Letters with respect to the Equity Commitment Letters or the Equity Financing; and (C) if for any reason Parent or Merger Subs at
any time believes that it will not be able to obtain all or any portion of the Equity Financing necessary to consummate the
transactions contemplated hereby. Parent will provide any information reasonably requested by the Company relating to any of the
circumstances referred to in the previous sentence as soon as reasonably practical after the date that the Company delivers a
written request therefor to Parent.
6.14.
Other Actions by the Company.
(a)
Takeover Laws. The Company, the Company Board and the Special Committee shall (i) take reasonable actions within
their power to ensure that no Takeover Law or any anti-takeover provision in the Company’s certificate of incorporation or bylaws
(including, for the avoidance of doubt, Article Tenth of the Company’s certificate of incorporation) is or becomes applicable to
this Agreement, the Support Agreement, the Mergers or the other transactions contemplated by this Agreement and the Support Agreement;
(ii) not take any action that would cause any Takeover Law or any anti-takeover provision in the Company’s certificate of incorporation
or bylaws (including, for the avoidance of doubt, Article Tenth of the Company’s certificate of incorporation) to become applicable
to this Agreement, the Support Agreement, the Mergers or the other transactions contemplated by this Agreement and the Support Agreement;
and (iii) if the restrictions of any Takeover Law or any anti-takeover provision in the Company’s
certificate of incorporation or bylaws (including, for the avoidance of doubt, Article Tenth of the Company’s certificate of incorporation)
are or become applicable to this Agreement, the Support Agreement, the Mergers or the other transactions contemplated by this Agreement
and the Support Agreement, the Company, the Company Board and the Special Committee shall take all actions within their power, to the
extent permitted by applicable Law, to ensure that the Mergers or such other transactions may be consummated as promptly as practicable
on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effects of such Law or provision of the Company’s
certificate of incorporation or by-laws on such transactions.
(b)
Section 16 Matters. The Company and the Company Board (or a duly formed committee thereof consisting of non-employee
directors (as such term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)), shall, prior to the Company Merger
Effective Time, take all such actions as may be necessary or appropriate to cause the transactions contemplated by this Agreement and
any other dispositions of equity securities of the Company (including derivative securities) in connection with the transactions contemplated
by this Agreement by any individual 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, to the extent permitted by applicable Law.
6.15.
Obligations of Parent.
(a) Parent,
in its capacity as the sole stockholder of Company Merger Sub, shall, in accordance with applicable Law and its certificate of
incorporation and bylaws, approve and adopt this Agreement by written consent immediately following its execution and shall deliver
a copy of such written consent to the Company.
(b)
Prior to the Company Merger Effective Time, without the prior written consent of the Company, Parent shall not permit or agree
to permit any Person to obtain any equity interests (or rights to obtain any equity interests) in Parent if such action would, individually
or in the aggregate, reasonably be expected to prevent or materially delay the ability of Parent and Merger Subs to consummate the Mergers
and any other transactions contemplated by this Agreement.
6.16.
Tax Matters.
(a)
Parent shall prepare, or cause to be prepared, each Pre-Closing Flow-Through Tax Return required to be filed after the Closing
with respect to each of Focus LLC and Focus Operating LLC, and each material Pre-Closing Flow-Through Tax Return required to be filed
after the Closing with respect to each of their respective Subsidiaries, in a manner consistent with past practice, except to the extent
otherwise required by applicable Law or this Agreement. To the extent applicable and to the extent permissible under Section 706 of the
Code, all items of income, gain, loss, deduction and credit allocable to the Focus LLC Units held by the Legacy Unitholders immediately
prior to the Vested Units Exchanges or the Rollover, as applicable, shall be allocated between the Legacy Unitholders, Parent, and the
Surviving Corporation based on an interim closing of the books on the Closing Date pursuant to Section 706 of the Code and the Treasury
Regulations promulgated thereunder. Parent shall not, and shall cause its Subsidiaries (including, after the Closing, the Surviving Corporation
and the Surviving LLC) not to, file or amend any Pre-Closing Flow-Through Tax Return with respect to Focus LLC or any of its Subsidiaries
in a manner that would reasonably be expected to have a material and disproportionate adverse impact on the Legacy Unitholders without
the prior written consent of the Securityholder Representative (such consent not to be unreasonably withheld, conditioned or delayed).
(b)
After the Closing, the Securityholder Representative shall, at the sole cost of the Legacy Unitholders, be entitled to participate
in any audit, examination, contest, litigation or other proceeding relating to Pre-Closing Flow-Through Tax Returns (each, a “Pre-Closing
Flow-Through Contest”) with respect to Focus LLC or any of its Subsidiaries that would reasonably be expected to have a
material and disproportionate adverse impact on the Legacy Unitholders, and none of Parent, the Surviving Corporation, the Surviving LLC
or any of their Affiliates shall settle or compromise any such proceeding in a manner that is reasonably expected to have a material and
disproportionate adverse impact on the Legacy Unitholders without the prior written consent of the Securityholder Representative (such
consent not to be unreasonably withheld, conditioned or delayed).
(c) The
Parties and the Securityholder Representative shall cooperate as and to the extent reasonably requested by any other Party or the
Securityholder Representative in connection with the filing of any Tax Returns described in Section 6.16(a) or any Action
with respect to the Taxes or Tax Returns of Focus LLC or any of its Subsidiaries described in Section 6.16(b). Such
cooperation shall include the retention and (upon the other Party’s or the Securityholder Representative’s request) the
provision of records and information that are reasonably relevant to any such Tax Return or Action and making employees available on
a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(d)
Notwithstanding anything to the contrary in this Agreement, the Parties and Securityholder Representative agree and acknowledge
that (i) with respect to any Pre-Closing Flow-Through Tax Return or any Pre-Closing Flow-Through Contest of Focus LLC or any of its Subsidiaries,
at the request of Parent or the Surviving Corporation, a “push-out” election under Section 6226 of the Code and the Treasury
Regulations thereunder (and any analogous provisions of state or local income tax law) shall be made, and the Parties and the Securityholder
Representative shall cooperate to cause (including by causing any “partnership representative” or “designated individual”
to cooperate to cause) any such election to be made, (ii) an election under Section 754 of the Code (and any analogous provisions of state
or local income tax law) shall be in effect or otherwise made with respect to Focus LLC and its Subsidiaries treated as partnerships for
U.S. federal income tax purposes for the taxable period including the transactions contemplated by this Agreement, and (iii) for U.S.
federal (and applicable state and local income tax purposes), the Vested Units Exchange shall be treated as sales or exchanges governed
by Sections 1001 and 741 of the Code, and the Parties agree to file all tax returns consistent with Section 6.16(d)(iii) unless
otherwise required by applicable law or by a final “determination” within the meaning of Section 1313 of the Code.
6.17.
Tax Receivable Agreements Payoff. Not later than 60 days prior to the Closing Date, the Company shall deliver drafts
of the Early Termination Notices and Early Termination Schedules (collectively, the “Draft Early Termination Documents”)
with respect to the Early Termination Payments (each as defined in the Tax Receivable Agreements) to be made in connection with the Closing
under the Tax Receivable Agreements (including with respect to issuance of the TRA Notes (as defined in the applicable TRA Holder Agreement)
and any calculations with respect thereto), together with reasonable supporting materials, to Parent for its review and consent (such
consent not to be unreasonably withheld, conditioned or delayed). Upon request by Parent, the Company shall reasonably cooperate to provide
access to its workpapers and authorized representatives with respect to the Draft Early Termination Documents. Within 20 days of the receipt
of the Draft Early Termination Documents, Parent shall deliver to the Company a statement setting forth any reasonable objections (an
“Objections Statement”), together with reasonable supporting detail as to any such disputed items. If an Objections
Statement is timely delivered, the Company and Parent shall negotiate in good faith to resolve any such objections set forth therein,
but if they do not reach a final resolution within 10 days after the delivery of the Objections Statement, the Company and Parent shall
submit any dispute to an independent accounting firm or law firm of nationally recognized standing reasonably satisfactory to the Company
and Parent (who shall not have any material relationship with the Company or with Parent or its Affiliates) (the “Independent
Expert”), and the Company and Parent shall use reasonable best efforts to cooperate with the Independent Expert and cause
the Independent Expert to resolve any disputed items in accordance with the terms of the Tax Receivable Agreements as promptly as reasonably
possible prior to the Company Merger Effective Time, but in any case no later than five days prior to the Closing Date. The Draft Early
Termination Documents, as finally agreed by the Company and Parent or as revised for any resolution by the Independent Expert of a disputed
item (the “Agreed Early Termination Documents”), shall be final and binding on the Parties, except as otherwise
mutually agreed by the Parties, and subject to the provisions and procedures set forth in the Tax Receivable Agreements.
6.18.
Cooperation with Debt Financing.
(a)
Prior to the Closing Date, the Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause
its and their respective Representatives (including legal and accounting representatives) to, provide to Parent and Merger Sub, in each
case at Parent’s sole cost and expense, such cooperation as is customary and reasonably requested by Parent in connection with the
arrangement and obtainment of debt financing in connection with the transactions contemplated by this Agreement or any high-yield bonds
(collectively, the “Debt Financing”), including:
(i)
furnishing Parent and Merger Subs (and Parent and Merger Subs may then furnish to applicable Financing Sources) as promptly as
practicable with the Required Information; provided that the filing of the Required Information on Form 10-K and Form 10-Q by the Company
will satisfy the requirements of this clause (i);
(ii)
using reasonable best efforts to cause senior management of the Company, with appropriate seniority and expertise, to assist in
the preparation for and to participate in a reasonable number of investor and lender meetings (including customary one-on-one meetings
and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the
Debt Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and
sessions with rating agencies in connection with the Debt Financing at reasonable times and locations mutually agreed, and to assist Parent
in obtaining ratings in connection with the Debt Financing;
(iii)
using reasonable best efforts to provide assistance with the preparation by Parent and the Financing Sources of materials for rating
agency presentations, offering documents, private placement memoranda, bank information memoranda, syndication memoranda, offering memoranda,
lender presentations, confidential information memoranda and other customary marketing documents required in connection with the Debt
Financing (collectively, the “Debt Marketing Materials”), including (A) furnishing (w) business and financial
projections reasonably requested by Parent, (x) information reasonably necessary to prepare risk factors, (y) records, data or other
information reasonably available and necessary to support any statistical information or claims relating to the Company appearing in the
Debt Marketing Materials and (z) customary executed certificates of the chief financial officer (or other comparable officer) of the Company
with respect to financial information (including pro forma financial information) included in the Debt Marketing Materials and (B) executing
and delivering customary authorization letters in connection with bank information memoranda and lender presentations (which include customary
10b-5 and material non-public information representations and shall be reasonably acceptable to the Company in all respects);
(iv)
using reasonable best efforts to cooperate with the Financing Sources’ due diligence, to the extent customary and reasonably
requested;
(v) using
reasonable best efforts to provide reasonable and customary assistance to Parent in connection with Parent’s preparation of
pro forma financial statements of the Company and its Subsidiaries of the type necessary or reasonably requested by the Financing
Sources to be included in any Debt Marketing Materials in respect of the Debt Financing, including by providing financial and other
pertinent information regarding the Company and its Subsidiaries and their respective businesses; provided, that neither the
Company nor any of its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A)
other than with respect to the Existing Credit Document and any other Indebtedness of the Company and its Subsidiaries that is
anticipated to remain outstanding following the Closing, the proposed debt and equity capitalization that is required for such pro
forma financial information or assumed interest rates and fees and expenses relating to such debt and equity capitalization, (B) any
post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be
incorporated into any information used in connection with the Debt Financing or (C) any information related to Parent or any of its
Subsidiaries or any adjustments that are not directly related to the acquisition of the Company; provided, further, that the
Company shall not be responsible for the preparation of any such pro forma financial statements, which shall be prepared solely by
Parent;
(vi)
using reasonable best efforts to assist in the preparation, execution and delivery of definitive financing documents, including
any credit agreements, notes, indentures, guarantee and collateral documents, pledge and security documents, customary closing certificates
and documents and back-up therefor and for legal opinions in connection with the Debt Financing (including executing and delivering a
solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company) and other customary documents
(including executing and delivering any certificate from an Authorized Officer pursuant to the definition of “Permitted Other Indebtedness”
in the Existing Credit Document) as may be reasonably requested by Parent or the Financing Sources and otherwise facilitating the pledging
of, grant of security interests in and obtaining of perfection of any liens on collateral in connection with the Debt Financing; provided
that (except in the case of (A) a customary certificate of the chief financial officer (or other comparable officer) of the Company
described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds,
(B) the authorization letters set forth in clause (iii) above, (C) the representation letters required by the Company’s auditors
in connection with the delivery of “comfort letters” set forth in clause (x) below and (D) the certificate of an Authorized
Officer that is required to be delivered pursuant to the definition of “Permitted Other Indebtedness” in the Existing Credit
Document), (I) none of the documents or certificates shall be executed or delivered except in connection with the Closing, (II) the
effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing and (III) no liability
shall be imposed on the Company or any of its Subsidiaries or any of their respective officers or employees prior to the Closing Date;
(vii) providing
all documentation and other information about the Company and its Subsidiaries as is reasonably requested under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub.
L. 107-56 (signed into law on October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for
Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act
(such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time) and providing a certification regarding
beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least four (4) Business Days prior to the Closing Date
to the extent requested in writing at least nine (9) Business Days prior to the Closing Date;
(viii)
using reasonable best efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s existing
lending and banking relationships;
(ix)
using reasonable best efforts to take all corporate, limited liability company, partnership or other similar actions reasonably
requested by Parent or any Financing Sources to permit the consummation of the Debt Financing; provided that (i) no such actions
shall be required to be effective prior to the Closing, and (ii) no such action shall be required of any director or officer of the Company
that is not continuing in such capacity following the Closing Date;
(x)
using reasonable best efforts to cause Deloitte & Touche LLP (and any other auditor to the extent financial statements audited
or reviewed by such auditor are or would be included in an offering memorandum) to (1) furnish to Parent and the Financing Sources, consistent
with customary practice, customary comfort letters (including “negative assurance” comfort and change period comfort) and
consents, together with drafts of such comfort letters that such independent auditors of the Company are prepared to deliver upon “pricing”
and “closing” of any high-yield bonds, and deliver such comfort letters upon the “pricing” and “closing”
of any such high-yield bonds, with respect to financial information relating to the Company as reasonably requested by Parent or the Financing
Sources, as necessary or customary for financings similar to the Debt Financing and (2) attend accounting due diligence session and drafting
sessions;
(xi)
using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing to the extent
within the control of the Company; and
(xii)
furnishing Parent and Merger Subs as promptly as practicable with any notices received by the Company or any of its Subsidiaries
from any administrative agent or lender under the Existing Credit Document;
provided, that:
(A) in no event shall
the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing
operations of the Company and its Subsidiaries;
(B) no obligation
of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective
until the Closing Date (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of
the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield
bonds, (2) the authorization letters set forth in clause (iii) above, (3) the “know-your-customer” and anti-money laundering
documents contemplated in clause (vii) above, (4) any certificate of the chief financial officer (or other comparable officer) of
the Company reasonably required by Parent’s counsel in connection with the delivery of any legal opinions such counsel may be required
to deliver (including the certificates set forth in clauses (iii) and (vi) above), (5) the representation letters required by the
Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (x) above and (6) any certificate
of an Authorized Officer that is required to be delivered pursuant to the definition of “Permitted Other Indebtedness” in
the Existing Credit Document));
(C) in no event shall
the Company or any of its Subsidiaries be required to pay any commitment or other fee, enter into any definitive agreement or agree to
provide any indemnity in connection with the Debt Financing that is effective prior to the Closing Date;
(D) nothing in this
Section 6.18 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries’
organizational documents or any applicable Laws or result in, prior to the Closing Date, the contravention of any Material Contract to
which the Company or its Subsidiaries is a party;
(E) neither the Company
or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x)
pass resolutions or consents to approve or authorize the execution of the Debt Financing (except those which are subject to the occurrence
of the Closing passed by directors or officers continuing in their positions following the Closing), or (y) execute any document or Contract
(except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described
in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the
authorization letters set forth in clause (iii) above, (3) the representation letters required by the Company’s auditors in
connection with the delivery of “comfort letters” set forth in clause (x) above, (4) the “know-your-customer”
and anti-money laundering documents contemplated in clause (vii) above prior to the occurrence of the Closing in connection with the Debt
Financing and (5) any certificate of an Authorized Officer that is required to be delivered pursuant to the definition of “Permitted
Other Indebtedness” in the Existing Credit Document) prior to the occurrence of the Closing in connection with the Debt Financing;
(F) none of the
Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in
connection with the Debt Financing, the disclosure of which, in the judgment of the Company, is subject to attorney-client privilege
or could result in the disclosure of any trade secrets or the violation of any confidentiality obligation; provided, that the
Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such
information, and in the case of any confidentiality obligation, the Company shall, to the extent permitted by such confidentiality
obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and
requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the Company
or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver (except to the extent constituting
Required Information), (x) any financial information in a form not customarily prepared by the Company or its Subsidiaries in the
ordinary course of their business, (y) any financial information with respect to a fiscal period that has not yet ended or (z) any
pro forma financial information or projections (without waiver of the obligations of the Company set forth in clause (v) above);
(H) none of the Company
or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection
with the Debt Financing, the disclosure of which, in the judgment of the Company, would require the Company to make public such information
in compliance with Regulation FD under the Exchange Act, except as contemplated by Section 6.18(e);
(I) none of the Company
or its Subsidiaries or any of their respective Representatives shall be required to deliver any legal opinion in connection with the Debt
Financing;
(J) none of the Company
or its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause the Company or any
of its Subsidiaries to breach any representation, warranty, covenant or agreement in this Agreement; and
(K) none of the Company
or its Subsidiaries or any of their respective Representatives shall be required to take any action that could reasonably be expected
to cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur personal liability or to
make any representation, warranty or certification which the Company has determined in good faith is not true.
(b) Parent
shall, in the event the Closing shall not occur, (x) promptly, upon request by the Company, reimburse the Company for all reasonable
and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ fees and (B) reasonable
and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Debt Financing,
including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing
any comfort letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the
cooperation of the Company and its Subsidiaries and Representatives contemplated by Section 6.18(a) (it being understood that
the reimbursement set forth in this paragraph shall not apply to any fees, costs and expenses incurred by, or on behalf of, the
Company in connection with its ordinary course financial reporting requirements); and (y) indemnify and hold harmless the Company,
its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses
actually suffered or incurred by any of them in connection with the arrangement of the Debt Financing (including the performance of
their respective obligations under this Section 6.18) and any information used in connection therewith, in each case other
than to the extent any of the foregoing was suffered or incurred as a result of (I) the fraud, bad faith, gross negligence or
willful misconduct of, or a material breach of this Agreement by, the Company, any of its Subsidiaries or any of their respective
Representatives or (II) information provided by or on behalf of the Company, any of its Subsidiaries or any of their respective
Representatives (the obligations set forth in this paragraph collectively, the “Reimbursement
Obligations”).
(c)
The Company hereby consents to the use of its logos, names and trademarks in connection with the Debt Financing; provided
that Parent and Merger Subs shall ensure that such logos, names and trademarks are used solely in a manner that is not intended to or
reasonably likely to harm or disparage the Company or the Company’s reputation or goodwill.
(d)
The Company shall, and shall cause its Subsidiaries to, supplement the Required Information on a reasonably current basis to the
extent that any such Required Information, to the knowledge of the Company or any Subsidiary, when taken as a whole and in light of the
circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary
to make such information not materially misleading.
(e)
At the reasonable request of Parent, and subject to the consent of the Company (which consent shall not be unreasonably withheld,
conditioned or delayed), the Company shall use reasonable best efforts to make public, in a customary form and manner reasonably acceptable
to Parent and in compliance with Regulation FD under the Exchange Act (“Regulation FD”), certain information
identified by Parent relating to the Company for purposes of permitting such information to be included in the Debt Marketing Materials
to be provided to potential investors who do not wish to receive material nonpublic information with respect to any of the Company, its
Subsidiaries or any of their respective securities (to the extent it is customary to so include such information).
(f)
Notwithstanding anything to the contrary in this Agreement, a breach of the obligations of the Company under this Section 6.18,
shall not be asserted as the basis for (i) any conditions set forth in Article VII to consummate the Mergers having not been satisfied
or (ii) the termination of this Agreement pursuant to Section 8.1(e), in each case, unless (A) such breach is a Willful Breach
of this Section 6.18, (B) Parent has provided the Company with notice in writing of such breach (with reasonable specificity as
to the basis for any such breach and its materiality) and the Company has failed to cure such breach in a timely manner) and (C) such
breach is the proximate cause of the Debt Financing not being consummated.
6.19.
Client Notices and Consents.
(a) Non-Fund
Clients If written consent to the assignment of an Advisory Contract with any Non-Fund Client as a result of the transactions
contemplated by this Agreement is expressly required by such Non-Fund Client’s Advisory Contract (each, a “Written
Consent Client”), the Company shall cause the relevant RIA Subsidiary to (i) no earlier than the No-Shop Period Start
Date (or, if applicable, the Cut-Off Time) and no later than two Business Days following the date on which the Requisite Company
Stockholder Approvals have been obtained, send a notice, substantially in the form attached hereto as Exhibit D-1 mutually
agreed to between Parent and the Company, in respect of the transactions contemplated by this Agreement, to each Written Consent
Client (an “Affirmative Consent Notice”) and (ii) use its reasonable best efforts to obtain such consent
with respect to each Written Consent Client prior to the Closing Date, including, without limitation, by sending a second notice
substantially in the form of the Affirmative Consent Notice to any Written Consent Client that has not provided such consent (or
objected to providing such consent) within 30 days of the date of such Written Consent Client’s Affirmative Consent Notice. If
consent other than written consent to the assignment of an Advisory Contract with any Non-Fund Client as a result of the
transactions contemplated by this Agreement is permitted under applicable Law and the terms of the applicable Investment Contract or
if such Investment Contract is silent as to the type of consent required (each, a “Negative Consent
Client”), the Company shall cause the relevant RIA Subsidiary to (x) no earlier than the No-Shop Period Start Date
(or, if applicable, the Cut-Off Time) and no later than two Business Days following the date on which the Requisite Company
Stockholder Approvals have been obtained, send a notice, substantially in the form attached hereto as Exhibit D-2, in respect
of the transactions contemplated by this Agreement, to each Negative Consent Client (a “Negative Consent
Notice” and together with the Affirmative Consent Notice, the “Client Consent Notices”) and
(y) use its reasonable best efforts to obtain such consent with respect to each Negative Consent Client who has objected to the
transactions contemplated hereby prior to the Closing Date. The Company shall provide Parent written notice of the date that Client
Consent Notices have been sent to all Non-Fund Clients (the “Notice Date”) no later than two Business Days
following the Notice Date.
(b)
Private Fund Clients. With respect to each Advisory Client that is a Private Fund (the “Private Fund Clients”),
the Company shall, in accordance with applicable Law and the applicable Fund Documents, use its reasonable best efforts to obtain, as
soon as reasonably practicable following the date on which the Requisite Company Stockholder Approvals have been obtained, and in any
event prior to the Closing, the requisite consent of each such Advisory Client to the deemed “assignment” (as defined in the
Investment Advisers Act) of each such Advisory Client’s Advisory Contract (including, as applicable, the consent of any applicable
requisite percentage of the board of directors, advisory committee, investment committee, or investors therein).
(c)
Registered Fund Clients.
(i) With
respect to each Advisory Client that is a Registered Fund, the Company shall cause each RIA Subsidiary (as applicable) to use its
reasonable best efforts to (A) promptly following the date hereof, solicit the board of directors or other similar governing body
(each, a “Fund Board”) to approve (y) a new Advisory Contract with such RIA Subsidiary, and (z) an interim
Advisory Contract in conformity with Rule 15a-4 under the Investment Company Act (each, an “Interim Advisory
Contract”), as applicable depending on whether shareholder approval has been obtained, in each case, to be effective
as of the Closing, (B) no later than two Business Days following the date the Requisite Company Stockholder Approvals have been
obtained, solicit the shareholders of each such Registered Fund to approve the applicable new Advisory Contract, each in accordance
with the applicable provisions of the Investment Company Act, any other applicable Laws and Section 6.19(c)(ii) below and (C)
prior to the Closing Date, obtain approval of the Fund Board of each Advisory Client that is a Registered Fund to an Interim
Advisory Contract. Except as otherwise consented to in writing by Parent (not to be unreasonably withheld), each such new Advisory
Contract, and Interim Advisory Contract (as applicable), shall be on substantially the same terms and conditions (and identical
terms with respect to advisory fees) as the current Advisory Contract (except as permitted or required under Rule 15a-4 of the
Investment Company Act).
(ii)
For purposes of obtaining the shareholder approval of each Registered Fund described in Section 6.19(c)(i) above, the Company
shall cause each RIA Subsidiary to use its reasonable best efforts: (A) to request, as promptly as practical following receipt of the
approval by any Fund Board of a new Advisory Contract, such Fund Board to call a meeting of the shareholders of such Registered Fund to
be held as promptly as reasonably practical in accordance with the organizational documents of each Registered Fund for the purpose of
voting upon a proposal to approve (in the requisite manner) such new Advisory Contract; (B) to cause to be prepared and filed with the
SEC and all other applicable Governmental Authorities, as promptly as practical following receipt of the approval by the Fund Board of
a new Advisory Contract, all proxy solicitation materials required to be distributed to the shareholders of such Registered Fund with
respect to the actions recommended for shareholder approval by such Fund Board and to mail (or to cause to be mailed) such proxy solicitation
materials as promptly as practical after clearance thereof by the SEC (if applicable); and (C) to request such Fund Board to submit, as
promptly as practical following the mailing of such proxy materials, to the shareholders of such Registered Fund for a vote at a shareholders
meeting the actions recommended for shareholder approval by such Fund Board. The Parent shall provide reasonable cooperation with the
Company and the relevant RIA Subsidiary in connection with obtaining the approvals contemplated in this Section 6.19(c). The Parent
shall be provided a reasonable opportunity to review and comment on the proxy and related materials distributed in connection with the
approvals described in this Section 6.19(c) at least five days prior to the preliminary filing of such materials with any Governmental
Authority, and the Company shall consider in good faith Parent’s reasonable comments to the proxy and related materials. The RIA
Subsidiaries agree that all proxy materials for any Registered Fund, at the time they are filed and at the time they are delivered to
shareholders, shall comply with all applicable Laws, and none of the information in any such proxy materials will, at the time such proxy
materials are mailed or otherwise delivered to the shareholders of the applicable Registered Fund, 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 were made, not misleading. The Company shall bear all fees and expenses incurred by the Company, the
RIA Subsidiaries or any of their Affiliates in connection with such solicitations, proxies and approvals.
(iii) As
soon as reasonably practicable following the date hereof, the Company shall (and shall cause the RIA Subsidiary to) use its
reasonable best efforts to cause each Registered Fund, to the extent then engaged in a public offering of its shares, to (A) file
supplements to its prospectus forming a part of its registration statement then currently in use, which supplements or amendments
shall reflect changes as necessary in such Registered Fund’s affairs as a consequence of the transactions contemplated by this
Agreement, and (B) make any other filing necessary under any applicable Law to satisfy disclosure requirements to enable the public
distribution of the shares of such Registered Fund to continue. The Parent shall have the right to provide reasonable comments on
such materials to the same extent as provided in Section 6.19(c)(ii).
(d)
From and after the date hereof, if (i) any RIA Subsidiary enters into an Advisory Contract with a new Advisory Client, the Company
shall cause the relevant RIA Subsidiary to disclose to, and obtain consent from, each such prospective new Advisory Client to the deemed
“assignment” (as defined in the Investment Advisers Act) of such new Advisory Clients’ Advisory Contract(s) that will
result upon the consummation of the transactions contemplated by this Agreement in a manner consistent with the language set forth in
the Affirmative Consent Notice, or (ii) the Company or any RIA Subsidiary acquires any business, assets or capital stock of any Person
or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation or otherwise),
that is registered with the SEC as an investment adviser under the Investment Advisers Act (a “Prospective RIA Subsidiary”),
the Company shall cause such Prospective RIA Subsidiary, in connection with such transaction, to disclose to, and obtain consent from,
each of its advisory clients to the deemed “assignment” (as defined in the Investment Advisers Act) of such advisory clients’
advisory contract(s) that will result upon the consummation of the transactions contemplated by this Agreement, in a manner consistent
with Sections 6.19(a), 6.19(b) and 6.19(c), as applicable.
(e)
Notwithstanding anything to the contrary contained herein, in connection with obtaining the consent of any Advisory Client to the
assignment of its Advisory Contract, neither the Company nor any RIA Subsidiary shall agree to any economic concessions or other material
change to any Advisory Contract without Parent’s prior written consent (which may not be unreasonably withheld or delayed). The
Company shall keep Parent reasonably informed of the status of the Company’s efforts to obtain the Advisory Client consents to be
requested under this Section 6.19, and upon Parent’s request, the Company shall provide Parent with a summary of the Advisory
Clients who have, at that point in time, declined to provide consent to the deemed assignment of their advisory contracts. Parent shall
have the reasonable opportunity to review drafts of the Client Consent Notices and any other materials contemplated by this Section
6.19 in advance of dissemination of such materials to the applicable recipients thereof and the Company shall consider in good faith
Parent’s reasonable comments to such drafts reviewed prior to such dissemination.
(f)
The Company shall keep Parent reasonably informed of the status of the Company’s efforts to obtain the consents to be requested
under this Section 6.19. From and after the date hereof, the Company shall use its reasonable best efforts to prepare and deliver
to the Parent, at least five, but no more than 10, Business Days prior to the Closing Date, a schedule setting forth (x) the aggregate
Advisory Revenue of Non-Fund Clients that have refused or failed to consent as of such date, and (y) the aggregate Advisory Revenue of
Private Fund Clients that have not provided consent as of such date.
6.20. FINRA
and State BD Approvals. The Company shall cause each of the BD Subsidiaries to make and submit (or make and submit as a
single joint filing, as permitted by FINRA), as soon as reasonably practicable following the date hereof (i) a continuing membership
application under FINRA Rule 1017 to FINRA for approval of the change of control of the BD Subsidiaries resulting from the
transactions contemplated herein (including all supplements, revisions and amendments thereto, each a
“CMA”) and use its reasonable best efforts to obtain such approval as soon as reasonably practicable,
including by requesting that FINRA consider such application for its “fast track” review process (collectively, the
“FINRA Approvals”), and (ii) applications for approval of, or notice filings required under, applicable
state securities Laws with respect to, a change in ownership or control of each BD Subsidiary (collectively, the “State
BD Approvals”). Parent shall have the right to review, provide comments on and approve the CMA for each of the BD
Subsidiaries prior to submission in advance of the filing of such materials. The Company shall consider in good faith Parent’s
reasonable comments to the CMA for each of the BD Subsidiaries. The Company shall not permit any BD Subsidiary to file a CMA that
has not been approved by Parent. The Company shall promptly apprise Parent of the occurrence and substance of each material
communication from or to FINRA or the SEC with respect to the CMA for any BD Subsidiary. Without the prior written consent of
Parent, the Company shall not, and shall not permit any BD Subsidiary to, agree to any non-de minimis restriction on the operation
of any BD Subsidiary as a condition to FINRA’s approval of any CMA. The Company and Parent shall cooperate (and cause their
respective Affiliates to cooperate) with each other and with FINRA and state securities authorities in connection with such filings
and resolving any inquiries from FINRA and state securities authorities in connection therewith, shall promptly provide any
supplemental information requested in connection with such filings, and shall use reasonable best efforts to obtain FINRA’s
approval of the CMA and State BD Approvals for each of the BD Subsidiaries.
6.21.
FIRPTA Certificate and IRS Form. At or prior to the Closing, (i) the Company shall deliver to Parent and Merger
Subs a certificate and IRS notice in form and substance required under Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c) stating
that the Company is not and has not been during the relevant period a “United States real property holding corporation” within
the meaning of Section 897(c)(2) of the Code, and (ii) the Company shall, and shall cause its Subsidiaries to, cooperate in causing each
holder of equity interests in Focus LLC (other than the Company and its wholly owned Subsidiaries) that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code to deliver a properly completed and duly executed IRS Form W-9 or any other non-foreign
affidavit, dated as of the Closing Date in form and substance required by Code Sections 1445 and 1446 and the Treasury Regulations thereunder.
The Company shall, and shall cause its Subsidiaries to, cooperate with Parent in connection with the computation and verification of any
amounts required to be withheld under Code Section 1446(f) with respect to the transactions contemplated by this Agreement, including
any “amount realized” as determined under Code Section 1446(f) (including, without limitation, by providing a certification
as described in Treasury Regulations Section 1.446(f)-2(c)(2)(ii)(C)). Notwithstanding anything to the contrary in this Agreement, (i)
a breach of the obligations of the Company under this Section 6.21 will not be taken into account for purposes of determining whether
any conditions set forth in Article VII have been satisfied and (ii) Parent’s and Merger Subs’ sole recourse in the
event of the breach of the obligations of the Company under this Section 6.21 will be to deduct or withhold, or cause to be deducted
or withheld, from any amounts otherwise payable pursuant to this Agreement as provided in Section 4.4(g).
6.22.
Notification of Certain Matters.
(a) During
the Pre-Closing Period, the Company will give prompt notice to Parent upon becoming aware that any representation or warranty made
by it in this Agreement has become untrue or inaccurate in any material respect, or of any failure by the Company to comply with or
satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it pursuant to this
Agreement, in each case if and only to the extent that such untruth, inaccuracy, or failure would reasonably be expected to cause
any of the conditions to the obligations of Parent and Merger Subs to consummate the Mergers set forth in Section 7.2(a) or Section
7.2(b) to fail to be satisfied at the Closing. No such notification will affect or be deemed to modify any representation or
warranty of the Company that is set forth in this Agreement or the conditions to the obligations of Parent and Merger Subs to
consummate the Mergers or the remedies available to the Parties under this Agreement.
(b)
During the Pre-Closing Period, Parent will give prompt notice to the Company upon becoming aware that any representation or warranty
made by Parent or Merger Subs in this Agreement has become untrue or inaccurate in any material respect, or of any failure by Parent or
Merger Subs to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by
it pursuant to this Agreement, in each case if and only to the extent that such untruth, inaccuracy or failure would reasonably be expected
to cause any of the conditions to the obligations of the Company to consummate the Merger set forth in Section 7.3(a) or Section
7.3(b) to fail to be satisfied at the Closing. No such notification will affect or be deemed to modify any representation or warranty
of Parent or Merger Subs that is set forth in this Agreement or the conditions to the obligations of the Company to consummate the Mergers
or the remedies available to the Parties under this Agreement.
(c)
Notwithstanding anything to the contrary in this Agreement, a breach of the obligations of the Company or Parent under this Section
6.22 will not be taken into account for purposes of determining whether any conditions set forth in Article VII have been satisfied.
6.23.
Transfer Restrictions. The Company, in its capacity as Managing Member of Focus LLC, hereby consents to any Transfer
(as defined in the Focus LLC Agreement) of the Rollover Units as contemplated by the Support Agreement. The Company acknowledges and agrees
that this Section 6.23 fulfills any consent or notice requirements for the Transfer of the Rollover Units (including the consent
requirements set forth in Section 8.1 of the Focus LLC Agreement) and that no other consent or notice is required pursuant to the Focus
LLC Agreement. Following the date hereof, the Company, in its capacity as Managing Member, shall not consent to any Transfer of the Focus
LLC Units (except as set forth in this Section 6.23) without the prior written consent of Parent.
6.24. Topco
Board. Parent shall take such actions as required such that as of the Company Merger Effective Time and immediately
thereafter, (a) a majority of the Voting Stock (as defined in the Existing Credit Facility) of Ferdinand FFP Ultimate Holdings, LP
(“Topco”), which from and immediately after the Company Merger Effective Time shall indirectly own a
majority of the Voting Stock of the Company and Focus LLC, shall be owned by Permitted Holders (as defined in the Existing Credit
Facility) and (b) Permitted Holders shall be entitled to designate a majority of the members of the board of directors (or
equivalent governing body) of Topco and, indirectly, Focus LLC.
Article
VII
Conditions
7.1.
Conditions to Each Party’s Obligation to Effect the Mergers. The respective obligation of each Party
to effect the Mergers is subject to the satisfaction or waiver (except with respect to Section 7.1(a), which shall not be
waivable) at or prior to the Closing of each of the following conditions:
(a)
Requisite Company Stockholder Approvals. The Requisite Company Stockholder Approvals shall have been obtained.
(b)
Antitrust Clearance. The waiting period applicable to the consummation of the Mergers under the HSR Act shall have
expired or been terminated and the approvals, clearances or expirations of waiting periods under the other Antitrust Laws set forth on
Section 7.1(b) of the Company Disclosure Schedule shall have been obtained or deemed obtained as a result of the expiry of
applicable waiting periods.
(c)
Laws or Orders. No court or other Governmental Authority of competent jurisdiction shall have enacted, announced,
issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) (collectively, an “Order”)
that is then in effect and that restrains, enjoins, renders illegal or otherwise prohibits consummation of the Merger.
7.2.
Conditions to Obligations of Parent and Merger Subs. The obligations of Parent and Merger Subs to effect the
Mergers are also subject to the satisfaction or waiver by Parent at or prior to the Closing of the following conditions:
(a) Representations
and Warranties. (i) The representation and warranty of the Company set forth in Section 5.1(g)(ii) (Absence
of Material Adverse Effect) and Section 5.1(w) (Existing Credit Document) shall have been true and correct as of
the date of this Agreement and shall be true and correct as of the Closing Date; (ii) each of the representations and
warranties of the Company set forth in Section 5.1(b)(i), Section 5.1(b)(iv) and Section 5.1(b)(v) (Capital
Structure) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date
(except to the extent that any such representation or warranty expressly speaks as of a particular date or period of time, in which
case as of such particular date or period of time), except for any inaccuracies that would result in no more than a de minimis
increase in the aggregate amount of the Merger Consideration; (iii) each of the representations and warranties of the
Company set forth in the first sentence of Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.1(b)(ii) (Capital
Structure), the first sentence of Section 5.1(b)(iii) (Capital Structure), Section 5.1(b)(vi) (Capital
Structure), Section 5.1(c) (Corporate Authority; Approval and Fairness), Section 5.1(m) (Takeover
Statutes) and Section 5.1(u) (Brokers and Finders): (A) to the extent not qualified or limited by the word
“material,” “materiality” or “Material Adverse Effect” as set forth therein, shall have been
true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as
of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or
period of time, in which case such representation and warranty shall be so true and correct in all material respects as of such
particular date or period of time); and (B) to the extent qualified or limited by the word “material,”
“materiality” or “Material Adverse Effect” as set forth therein, shall have been true and correct as of the
date of this Agreement and shall be true and correct as of the Closing Date (except to the extent that any such representation and
warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true
and correct as of such particular date or period of time); and (iv) the other representations and warranties of the Company
set forth in this Agreement shall have been true and correct as of the date of this Agreement and shall be true and correct as of
the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period
of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time),
except, in the case of this clause (iv), for any failures of such representations and warranties to be so true and correct
(without giving effect to any materiality limitations, such as “material,” “in all material respects” and
“Material Adverse Effect” set forth therein) that have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b)
Performance of Obligations of the Company. The Company shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the Closing Date.
(c)
No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a Material Adverse Effect.
(d)
Vested Units Exchanges. The Vested Units Exchanges shall have occurred in accordance with the terms of Section
1.1 and effective as of immediately prior to the LLC Merger Effective Time.
(e)
Company Closing Certificate. Parent and Merger Subs shall have received at the Closing a certificate signed on behalf
of the Company by the Chief Executive Officer or Chief Financial Officer of the Company certifying that the conditions set forth in Section 7.2(a),
Section 7.2(b), Section 7.2(c) and Section 7.2(d) are satisfied.
(f)
Other Regulatory Approvals. The approvals, clearances or expirations of waiting periods set forth in Section 7.2(f)
of the Company Disclosure Schedule shall have been obtained.
(g) FINRA
Consent. FINRA’s approval of the CMA for each of the BD Subsidiaries shall have been obtained; provided, that
the condition set forth in this Section 7.2(g) shall be deemed satisfied if (i) 30 calendar days shall have elapsed after FINRA has
accepted the CMA for such BD Subsidiary as “substantially complete” (as determined by FINRA) and such filing shall not
have been rejected; (ii) the Parties shall have notified FINRA after FINRA has accepted such CMA as “substantially
complete” and at least five (5) days before the Closing that the Parties intend to consummate the Closing without final,
written approval from FINRA of the CMA for such BD Subsidiary; (iii) FINRA shall have informed the Parties that it would not impose
any interim restrictions that would have a material adverse effect on such BD Subsidiary if the Closing is consummated without such
FINRA approval; and (iv) FINRA shall not have advised at any time prior to the Closing that the Parties are prohibited from
consummating the Closing without FINRA’s prior approval of the CMA for such BD Subsidiary or that FINRA expects to disapprove
such CMA or grant such CMA only if material restrictions are imposed on such BD Subsidiary.
7.3.
Conditions to Obligation of the Company. The obligation of the Company to effect the Mergers are also subject
to the satisfaction or waiver by the Company at or prior to the Closing of the following conditions:
(a)
Representations and Warranties. The representations and warranties of Parent and Merger Subs set forth in this Agreement
shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date (except to the
extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation
and warranty shall be so true and correct as of such particular date or period of time), except as would not, individually or in the aggregate,
reasonably be expected to prevent, materially delay or have a material adverse effect on the ability of Parent or Merger Subs to consummate
the Mergers and deliver the Merger Consideration in accordance with Article IV.
(b)
Performance of Obligations of Parent and Merger Subs. Each of Parent and Merger Subs shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date.
(c)
Parent Closing Certificate. The Company shall have received at the Closing a certificate signed on behalf of Parent
and Merger Subs by an executive officer of Parent certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b)
are satisfied.
Article
VIII
Termination
8.1.
Termination. This Agreement may be terminated and the Mergers and any other transactions contemplated by this
Agreement may be abandoned at any time prior to the Company Merger Effective Time:
(a)
by mutual written consent of the Company (provided that such termination has been approved by the Special Committee) and Parent;
(b)
by either Parent or the Company (provided that such termination has been approved by the Special Committee), if the Mergers shall
not have been consummated on or before November 27, 2023 (the “Outside Date”); provided, that the right
to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the Party whose breach of any representation,
warranty, covenant or agreement set forth in this Agreement has been the proximate cause of the failure of the Mergers to be consummated
by such time;
(c)
by either Parent or the Company, if the Requisite Company Stockholder Approvals shall not have been obtained if a vote shall have
been taken thereon at the Company Stockholders Meeting or at any postponement, recess or adjournment thereof taken in accordance with
this Agreement;
(d)
by either Parent or the Company, if any court or other Governmental Authority of competent jurisdiction shall have enacted, issued,
promulgated or entered any Order that permanently restrains, enjoins, renders illegal or otherwise permanently prohibits consummation
of the Mergers and such Order shall have become final and non-appealable; provided, that the right to terminate this Agreement
pursuant to this Section 8.1(d) shall not be available to the Party whose breach of any representation, warranty, covenant or agreement
set forth in this Agreement has been the proximate cause of such Order;
(e)
by Parent, if there has been a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement
such that any condition set forth in Section 7.2(a), or Section 7.2(b) would not be satisfied (and such breach
is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty
days after the giving of notice thereof by Parent to the Company describing such breach in reasonable detail and stating Parent’s
intention to terminate this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (ii) three
Business Days prior to the Outside Date); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(e)
shall not be available to Parent if it is in breach of any representation, warranty, covenant or agreement set forth in this Agreement,
which breach would give rise to a failure of a condition set forth in Section 7.3(a) or Section 7.3(b);
(f)
by the Company (provided that such termination has been approved by the Special Committee), if there has been a breach by Parent
or Merger Subs of any representation, warranty, covenant or agreement set forth in this Agreement such that any condition set forth in
Section 7.3(a) or Section 7.3(b) would not be satisfied (and such breach is not curable prior to the Outside Date,
or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty days after the giving of notice thereof
by to the Company to the breaching Party describing such breach in reasonable detail and stating the Company’s intention to terminate
this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (ii) three Business Days
prior to the Outside Date); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(f)
shall not be available to the Company if it is in material breach of any representation, warranty, covenant or agreement set forth in
this Agreement, which breach would give rise to a failure of a condition set forth in Section 7.2(a) or Section 7.2(b);
(g)
by Parent, prior to the time the Requisite Company Stockholder Approvals are obtained, if a Change of Recommendation shall have
been made or occurred; or
(h)
by the Company (provided that such termination has been approved by the Special Committee), prior to the time the Requisite Company
Stockholder Approvals are obtained, in connection with entering into an Alternative Acquisition Agreement providing for a Superior Proposal
in accordance with Section 6.2(f); provided that prior to or concurrently with such termination, the Company pays or causes
to be paid the Company Termination Fee due to Parent.
8.2.
Effect of Termination and Abandonment.
(a) The
Party terminating this Agreement pursuant to Section 8.1 (other than pursuant to Section 8.1(a)) must deliver prompt
written notice thereof to the other Parties setting forth in reasonable detail the provision of Section 8.1 pursuant to which
this Agreement is being terminated and the facts and circumstances forming the basis for such termination. Except to the extent
provided in this Section 8.2, in the event of termination of this Agreement in accordance with Section 8.1, this
Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or of any of its
Representatives or Affiliates); provided that the provisions set forth in this Section 8.2 and the second and third
sentences of Section 9.1 shall survive the termination of this Agreement. Notwithstanding the previous sentence, but
subject to Section 8.2(d) and Section 8.2(e), nothing in this Agreement will relieve any Party from any liability for any fraud or
Willful Breach of this Agreement prior to the termination of this Agreement. In addition to the foregoing, no termination of this
Agreement will affect the rights or obligations of any Party pursuant to the Confidentiality Agreement and the Guarantees, which
rights, obligations and agreements will survive the termination of this Agreement in accordance with their respective terms.
(b)
Subject to Section 8.2(d), in the event that this Agreement is terminated:
(i)
(A) (1) by either the Company or Parent pursuant to Section 8.1(c) (Requisite Company Stockholder
Approvals Not Obtained) or (2) by Parent pursuant to Section 8.1(e) (Company Breach);
(B)
an Acquisition Proposal shall have been made publicly (or otherwise become publicly known) or announced to the Company or the Company
Board which Acquisition Proposal has not been withdrawn at least five Business Days prior to the Company Stockholders Meeting or prior
to the date of termination in the case of a termination pursuant to Section 8.1(e); and
(C)
within 12 months after such termination, the Company shall have consummated a transaction contemplated by an Acquisition Proposal
or shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal; provided that, for purposes
of this Section 8.2(b)(i)(C), the references to “15%” in the definition of “Acquisition Proposal”
shall be deemed to be references to “50%”;
(ii)
by Parent pursuant to Section 8.1(g) (Change of Recommendation); or
(iii)
by the Company pursuant to Section 8.1(h) (Superior Proposal);
then, (1) in the case of Section 8.2(b)(i),
within two Business Days after the earlier of the entry into such Alternative Acquisition Agreement and the consummation of such Acquisition
Proposal, (2) in the case of Section 8.2(b)(ii), within two Business Days after termination of this Agreement and
(3) in the case of Section 8.2(b)(iii), concurrently with termination of this Agreement, the Company shall pay or
cause to be paid a termination fee of $150,350,000 (the “Company Termination Fee”) to Parent by wire transfer
of immediately available funds to an account designated in writing by Parent; provided, that if the Company terminates this Agreement
pursuant to Section 8.1(h) (Superior Proposal) and enters into an Alternative Acquisition Agreement with (y) an Excluded
Party prior to the Cut-Off Time or (z) any Person prior to the No-Shop Period Start Date with respect to a Superior Proposal, then the
“Company Termination Fee” shall mean an amount equal to $69,392,000.
(c)
Each Party 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, no Party would have entered into this Agreement; accordingly, if the
Company fails to timely pay Parent any amount due pursuant to Section 8.2(b), and, to obtain such payment, Parent commences a suit
that results in a judgment against the Company, the Company shall pay to Parent its reasonable, documented and out-of-pocket costs and
expenses (including the reasonable, documented and out-of-pocket attorneys’ fees of outside counsel, provided, that, in no event
shall attorneys’ fees that are based on a contingency fee, “success” fee or any other type of fee arrangement that is
dependent on the outcome of the proceedings be deemed to constitute reasonable, documented and out-of-pocket attorneys’ fees) in
connection with such suit, together with interest thereon compounded annually at the prime rate as published in The Wall Street Journal
(or if not reported therein, as reported in another authoritative source reasonably selected by the owed Party) in effect on the date
such Company Termination Fee was required to be paid from such date through the date of full payment thereof (any such amounts of costs,
expenses and interest, the “Enforcement Costs”); provided, that in no event shall the Company be required to pay Enforcement
Costs in an aggregate amount exceeding $5 million.
(d)
Limitations on Remedies.
(i)
In no event shall the Company be required to pay a Company Termination Fee on more than one occasion.
(ii) If
this Agreement is validly terminated pursuant to Section 8.1, in circumstances where the Company Termination Fee (if
any) is paid pursuant to and in accordance with Section 8.2(b), Parent and Merger Subs’ right to receive the
Company Termination Fee, and any Enforcement Costs pursuant to and in accordance with Section 8.2(c), shall be the sole and
exclusive remedies of Parent, Merger Subs and their respective Related Parties against the Company and its Related Parties pursuant
to this Agreement and the transactions contemplated hereby, including for any loss or monetary damages suffered as a result of any
breach of any covenant or agreement in this Agreement or the failure of the Mergers or any other transactions contemplated by this
Agreement to be consummated. Notwithstanding anything in this Agreement to the contrary, under no circumstances will the collective
monetary damages payable by the Company or any of its Affiliates for breaches under this Agreement exceed an amount equal
$300,701,000 (the “Company Liability Limitation”). In no event will the Parent or any Parent Related
Parties seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or
obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or monetary award in excess of the Company
Liability Limitation against the Company or any Company Related Party, and in no event will the Parent, Merger Subs or any of their
Affiliates be entitled to seek or obtain any monetary damages of any kind, including consequential, special, indirect or punitive
damages, in excess of the Company Liability Limitation against the Company or any Company Related Party for, or with respect to,
this Agreement or the transactions contemplated hereby (including any breach by the Company or its Subsidiaries), the termination of
this Agreement, the failure to consummate the Mergers or any claims or actions under applicable law arising out of any such breach,
termination or failure. Other than the obligations of the Company under this Agreement and the Confidentiality Agreement, in no
event will the Company or any Company Related Party or any other Person have any liability for monetary damages to Parent or any
other Person relating to or arising out of this Agreement or the Merger.
(e)
Notwithstanding anything in this Agreement to the contrary, under no circumstances will the collective monetary damages payable
by Parent, Merger Subs or any of their Affiliates for breaches under this Agreement, the Guarantees or the Equity Commitment Letters exceed
an amount equal to $300,701,000 plus the Reimbursement Obligations in the aggregate for all such breaches (the “Parent Liability
Limitation”). In no event will the Company or any Company Related Party seek or obtain, nor will they permit any of their
Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary
recovery or monetary award in excess of the Parent Liability Limitation against Parent, any Parent Related Party or any Financing Sources,
and in no event will the Company or any of its Subsidiaries be entitled to seek or obtain any monetary damages of any kind, including
consequential, special, indirect or punitive damages, in excess of the Parent Liability Limitation against Parent, any Parent Related
Party or any Financing Sources for, or with respect to, this Agreement, the Equity Commitment Letters, the Guarantees or the transactions
contemplated hereby and thereby (including any breach by Parent, Merger Subs or the Guarantor), the termination of this Agreement, the
failure to consummate the Merger or any claims or actions under applicable law arising out of any such breach, termination or failure.
Other than the Guarantor’s obligations under the Guarantees and the Equity Commitment Letters and other than the obligations of
Parent and Merger Subs under this Agreement, the Confidentiality Agreement and the Support Agreement, in no event will Parent, Merger
Subs, any of their respective Related Parties, any Financing Sources or any other Person other than Parent, Merger Subs or the Guarantor
have any liability for monetary damages to the Company or any other Person relating to or arising out of this Agreement or the Merger.
(f)
Each of the Parties acknowledges and agrees that the Company Termination Fee is not intended to be penalties, but rather are liquidated
damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable,
for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and
on the expectation of the consummation of the Mergers and any other transactions contemplated by this Agreement, which amount would otherwise
be impossible to calculate with precision.
(g)
Following the termination of this Agreement in accordance with this Article VIII, Parent shall reimburse the Company as
and to the extent provided by the Reimbursement Obligations (if any).
Article
IX
Miscellaneous and General
9.1. Survival.
This Article IX and the agreements of the Company, Parent and Merger Subs contained in Article IV, Section 6.9 (Employee
Benefits), Section 6.11 (Indemnification; Directors’ and Officers’ Insurance), Section 6.16 (Tax
Matters) and any other covenant or agreement contained in this Agreement that by its terms applies in whole or in part after the
Company Merger Effective Time shall survive the consummation of the Mergers. This Article IX and the agreements of the Company,
Parent and Merger Subs contained in Section 6.10 (Expenses) and Section 8.2 (Effect of Termination and
Abandonment) and the Guarantees shall survive the termination of this Agreement. All other representations, warranties,
covenants and agreements in this Agreement shall not survive the consummation of the Mergers or the termination of this
Agreement.
9.2.
Modification or Amendment. Subject to the provisions of applicable Law, at any time prior to the Company Merger
Effective Time, this Agreement may be amended, modified or waived if, and only if, such amendment, modification or waiver is in writing
and signed, in the case of an amendment or modification by Parent, Merger Subs and the Company, or in the case of a waiver, by the Party
against whom the waiver is to be effective; provided that after the receipt of the Requisite Company Stockholder Approvals, no amendment
shall be made that by applicable Law requires further approval by the holders of shares of Company Stock without obtaining such further
approval. Notwithstanding anything else to the contrary herein, the provisions set forth in Section 8.2(e), this Section 9.2,
Section 9.5, Section 9.8 and Section 9.18 (and with respect to any of the foregoing, any of the defined
terms used therein), in each case, may not be amended, modified or altered in any manner adverse to the Financing Sources in any material
respect without the prior written consent of the Financing Sources.
9.3.
Waiver. Other than Section 7.1, the conditions to each of the respective Parties’ obligations
to consummate the Mergers and any other transactions contemplated by this Agreement are for the sole benefit of such Party and may be
waived by such Party in whole or in part to the extent permitted by applicable Law. No failure or delay by any Party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by Law (except to the extent specifically provided otherwise in Section 8.2).
9.4.
Counterparts. This Agreement and any amendments to this Agreement may be executed in any number of counterparts,
each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement
and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it
being understood that all Parties need not sign the same counterpart. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission or by email of a .pdf attachment shall be effective as delivery of a manually executed counterpart
of this Agreement.
9.5.
Governing Law and Venue; Waiver of Jury Trial; Specific Performance.
(a) This
Agreement and any claim, cause of action or Action (whether at law, in contract or in tort) that may directly or indirectly be based
upon, relate to or arise out of this Agreement or any transaction contemplated hereby, or the negotiation, execution or performance
hereunder shall be governed by, and construed and enforced 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. In addition, each of the Parties
(i) irrevocably and unconditionally submits to the personal jurisdiction and venue of the Court of Chancery of the State of
Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware
does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, if jurisdiction is not
then available in the United States District Court for the District of Delaware, then any Delaware state court) (the
“Chosen Courts”), in the event of any claim, action or proceeding between the Parties (whether in
contract, tort or otherwise) arises out of or relating to this Agreement or the transactions contemplated hereby,
(ii) expressly waives any claim of lack of personal jurisdiction or improper venue and any claims that such courts are an
inconvenient forum with respect to such a claim and (iii) agrees that it shall not bring any claim, action or proceeding
against any other Parties arising out of or relating to this Agreement or the transactions contemplated hereby in any court other
than the Chosen Courts and that a final judgment in any legal proceeding in the Chosen Courts will be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law, and (iv) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Chosen Courts. Each Party
hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by
the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to its address set
forth in Section 9.6, such service to become effective ten days after such mailing. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY CLAIM, ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY LEGAL ACTION AGAINST ANY
FINANCING SOURCE ARISING OUT OF OR RELATED TO THE DEBT FINANCING. EACH PARTY (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5, (1) UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, AND (2) MAKES THIS WAIVER VOLUNTARILY. Notwithstanding anything to the contrary in this Agreement, each
Party expressly and irrevocably agrees that any action (whether at law, in contract or in tort) to which any Financing Source is
party arising out of or in any way relating to the transactions contemplated hereby shall be brought exclusively in the Supreme
Court of New York, County of New York (unless the Supreme Court of the State of New York, County of New York declines to accept
jurisdiction over a particular matter, in which case, the United States District Court for the Southern District of New York)
(together with the appellate courts thereof, the “New York Courts”), and each of the Parties hereby
submits to the exclusive jurisdiction of the New York Courts for the purpose of any such action. Each Party irrevocably and
unconditionally agrees not to assert (i) any objection which it may ever have to the laying of venue of any such litigation in
any New York Court, (ii) any claim that any such action brought in any New York Court has been brought in an inconvenient form
and (iii) any claim that any New York Court does not have jurisdiction with respect to such action.
(b)
The Parties acknowledge and agree that irreparable damage for which monetary damages, even if available, would not be an adequate
remedy, would occur in the event that any Party does not perform any of the provisions of this Agreement (including failing to take such
actions as are required of it hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific
terms or otherwise breach or threaten to breach any such provisions. It is accordingly agreed that, at any time prior to the valid termination
of this Agreement pursuant to Article VIII, subject to the limitations set forth therein and in this Section 9.5, the
Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches or threatened
breaches of this Agreement and to enforce specifically the performance of terms and provisions of this Agreement, including the right
of a Party to cause each other Party to consummate the Mergers and the other transactions contemplated by this Agreement on the terms
and subject to the conditions of this Agreement, and the right of the Company to cause Parent to cause the Equity Financing to be funded
as and when required under the Equity Commitment Letters in accordance with, and pursuant to the terms and conditions of, the Equity Commitment
Letters as applicable, in any court referred to in Section 9.5(a) without proof of actual damages (and each Party hereby waives
any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to
which they are entitled at law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable,
invalid, contrary to Law or inequitable or not appropriate for any reason, nor to assert that a remedy of monetary damages would provide
an adequate remedy for any such breach. Under no circumstances will Parent or the Company be permitted or entitled to receive both specific
performance that results in the occurrence of the Closing and any monetary damages.
9.6.
Notices. All notices, requests, instructions or other communications or documents to be given or made hereunder
by any Party to the other Parties to this Agreement shall be in writing and (a) served by personal delivery by hand upon the Party
for whom it is intended, (b) served by an internationally-recognized overnight courier service upon the Party for whom it is
intended, (c) delivered by registered or certified mail, return receipt requested or (d) sent by email:
If to Parent or Merger
Subs:
c/o Clayton, Dubilier &
Rice, LLC
375 Park Avenue, 18th Floor
New York, NY 10152
Attention: David Winokur
Email: dwinokur@cdr-inc.com
with a copy to (which shall
not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: David Klein, P.C.;
Rachael Coffey, P.C.
Email: david.klein@kirkland.com;
rachael.coffey@kirkland.com
Kirkland & Ellis LLP
300 N. LaSalle Street
Chicago, IL 60654
Attention: Richard Campbell,
P.C.; Kevin Mausert, P.C.
Email: rcampbell@kirkland.com;
kmausert@kirkland.com
with a copy to (which shall
not constitute notice):
c/o Stone Point Capital LLC
20 Horseneck Lane
Greenwich, CT 06830
Attention: Fayez S. Muhtadie;
Peter M. Mundheim
Email: fmuhtadie@stonepoint.com;
pmundheim@stonepoint.com
with a copy to (which shall
not constitute notice):
Simpson Thacher & Bartlett
LLP
425 Lexington Avenue
New York, NY 10017
Attention: Elizabeth A. Cooper;
Mark C. Viera
Email: ecooper@stblaw.com;
mark.viera@stblaw.com
If to the Special Committee:
Special Committee of the Board
of Directors of Focus Financial Partners Inc.
c/o Chairman of the Special
Committee
875 Third Avenue, 28th Floor
New York, NY 10022
Attention: George S. LeMieux
Email: george.stephen.lemieux@gmail.com
with a copy to (which shall not
constitute notice):
Potter Anderson & Corroon
LLP
1313 North Market Street,
6th Floor
Wilmington, DE 19801
Attention: Mark A. Morton
Email: mmorton@potteranderson.com
with a copy to (which shall not
constitute notice):
Focus Financial Partners Inc.
875 Third Avenue, 28th Floor
New York, NY 10022
Attention: Russell McGranahan
Email: rmcgranahan@focuspartners.com
If to the Company:
Focus
Financial Partners Inc.
875 Third Avenue, 28th Floor
New York, NY 10022
Attention: Russell McGranahan
Email: rmcgranahan@focuspartners.com
with a copy to (which shall not
constitute notice):
Vinson & Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Attention: Stephen Gill
Email: sgill@velaw.com
Vinson & Elkins L.L.P.
1114 Avenue of the Americas,
32nd Floor
New York, New York 10036
Attention: Stancell Haigwood
Email: shaigwood@velaw.com
with a copy to (which shall not
constitute notice):
Potter Anderson & Corroon
LLP
1313 North Market Street,
6th Floor
Wilmington, DE 19801
Attention: Mark A. Morton
Email: mmorton@potteranderson.com
or to such other Person or addressees as has
or have been designated in writing by the Party to receive such notice provided above. Any notice, request, instruction or other
communications or document given as provided above shall be deemed given to the receiving Party (w) upon actual receipt, if
delivered personally, (x) on the next Business Day after deposit with an overnight courier, if sent by an overnight courier,
(y) three Business Days after deposit in the mail, if sent by registered or certified mail or (z) upon confirmation
of receipt by the recipient if sent by email. Copies to outside counsel are for convenience only and failure to provide a copy to
outside counsel does not alter the effectiveness of any notice, request, instruction or other communication otherwise given in
accordance with this Section 9.6. Rejection or other refusal to accept, or the inability to deliver because of changed
address or other details of which no notice is given, will be deemed to be receipt of any notice pursuant to this Section 9.6
as of the date of rejection, refusal or inability to deliver.
9.7.
Entire Agreement. This Agreement (including any exhibits, annexes and schedules hereto), the Confidentiality
Agreement, the Support Agreement and the documents and other agreements among the Parties, or any of them, as contemplated by or referred
to herein, including the Company Disclosure Schedule, the Parent Disclosure Schedule, the Equity Commitment Letters and the Guarantees,
together with each other agreement entered into by or among any of the Parties as of the date of this Agreement that makes reference to
this Section 9.7, constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede
all other prior agreements, understandings, representations and warranties, both written and oral, among the Parties with respect to the
subject matter hereof.
9.8.
No Third-Party Beneficiaries. Except as provided in this Section 9.8, Parent and the Company hereby
agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other Parties,
in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person
other than the Parties any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth
herein; provided that if, and only if, the Company Merger Effective Time occurs, (a) the holders of shares of Company Stock shall
be third-party beneficiaries of, and entitled to rely on, Section 4.2 (Effect of the Company Merger) and Section 4.4
(Exchange of Shares) and (b) the Indemnified Parties and principals of the Company’s partner firms shall be third-party
beneficiaries of, and entitled to rely on, Section 6.11 (Indemnification; Directors’ and Officers’ Insurance).
The Parties further agree that the rights of third-party beneficiaries under the first proviso of this Section 9.8 shall not
arise unless and until the Company Merger Effective Time occurs. Notwithstanding anything in this Agreement to the contrary, the provisions
of Section 8.2(e), Section 9.2, Section 9.5, this Section 9.8 and Section 9.18 will,
subject to the rights of the Financing Sources in the last sentence of Section 9.2, inure to the benefit of the Financing
Sources, each of whom are intended to be third-party beneficiaries thereof (it being understood and agreed that the provisions of such
Sections will be enforceable by the Financing Sources), (b) the provisions of Section 8.2(d) will inure to the benefit of the Company
Related Parties, each of whom are intended to be third-party beneficiaries thereof (it being understood and agreed that the provisions
of such Section will be enforceable by the Company Related Parties) and (c) the provisions of Section 8.2(e) and Section
9.16 will inure to the benefit of the Parent Related Parties, each of whom are intended to be third-party beneficiaries thereof (it
being understood and agreed that the provisions of such Sections will be enforceable by the Parent Related Parties).
9.9. Special
Committee Approval. Notwithstanding anything to the contrary set forth in this Agreement, until the Company Merger Effective
Time, (a) the Company may take the following actions only with the prior approval of, and shall take any such action if
directed to do so by, the Special Committee: (i) amending, restating, modifying or otherwise changing any provision of this
Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees; (ii) waiving any right under this
Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees or extending the time for the performance of any
obligation of Parent or Merger Subs hereunder or any other party under the Equity Commitment Letters, the Support Agreement or the
Guarantees; (iii) terminating this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees;
(iv) taking any action under this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees that
expressly requires the approval of the Special Committee; (v) making any decision or determination, or taking any action
under or with respect to this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees that would
reasonably be expected to be, or is required to be, approved, authorized, ratified or adopted by the Company Board and
(vi) agreeing to do any of the foregoing and (vii) no decision or determination shall be made, or action taken,
by the Company Board under or with respect to this Agreement, the Equity Commitment Letters, the Support Agreement or the Guarantees
without first obtaining the approval of the Special Committee. In the event the Special Committee ceases to exist or is disbanded,
any consents, determinations, actions or other rights or obligations afforded to the Special Committee shall be afforded to a
majority of the remaining independent and disinterested members of the Company Board.
9.10.
Obligations of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take
any action, such requirement shall be deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action.
Whenever this Agreement requires a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking
on the part of the Company to cause such Subsidiary to take such action and, after the Company Merger Effective Time, on the part of the
Surviving Corporation to cause such Subsidiary to take such action.
9.11.
Transfer Taxes. Any transfer, documentary, sales, use, stamp, registration, excise and other similar Taxes
and fees incurred in connection with the Mergers and the other transactions contemplated by this Agreement (“Transfer Taxes”)
shall be paid by Parent when due, whether levied on Parent or any another Person, and Parent shall file all necessary Tax Returns and
other documentation with respect to any such Transfer Taxes. The Parties will cooperate, in good faith, in the filing of any Tax Returns
with respect to Transfer Taxes and the minimization, to the extent reasonably permissible under applicable Law, of the amount of any Transfer
Taxes.
9.12.
Definitions. Capitalized terms used in this Agreement have the meanings specified in Annex A.
9.13.
Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or
the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision
shall be substituted therefor 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 of such provision, in any other jurisdiction.
9.14.
Interpretation; Construction.
(a)
The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall
not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit,
such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated.
(b)
If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of
speech (such as a verb). Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include
the feminine and neutral genders and vice versa, and the definitions of terms contained in this Agreement are applicable to the singular
as well as the plural forms of such terms. The words “includes” or “including” shall mean “including without
limitation,” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms
in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, the word
“extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such
phrase shall not mean simply “if,” any reference to a Law shall include any rules and regulations promulgated thereunder,
and any reference to any Law in this Agreement shall mean such Law as from time to time amended, modified or supplemented and to any rules
or regulations promulgated thereunder. Currency amounts referenced herein are in U.S. Dollars. Each reference to a “wholly-owned
Subsidiary” or “wholly-owned Subsidiaries” of a Person shall be deemed to include any Subsidiary of such Person
where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other than directors qualifying
shares, nominee shares or other equity interests that are required by Law or regulation to be held by a director or nominee). The terms
“provided to” or “made available to,” with respect to documents required to be provided by the Company to Parent
or Merger Subs, include documents filed or furnished by the Company with the SEC or in the virtual data room titled “Project Ferdinand”
and “Project Ferdinand - Legal” located at dfsvenue.com at least 24 hours prior to the date hereof. The word “or”
shall not be exclusive.
(c)
The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question
of intent or interpretation arises, this Agreement 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 Agreement.
9.15. Successors
and Assigns. No Party may assign either this Agreement or any of its rights, interests or obligations under this Agreement
without the prior written approval of the other Parties, except that Parent and Merger Subs will have the right to assign all or any
portion of their respective rights and obligations pursuant to this Agreement (a) to any of their respective Affiliates; or
(b) to any Financing Source pursuant to the terms of the Debt Financing, for purposes of creating a security interest herein or
otherwise assigning as collateral in respect of the Debt Financing. It is understood and agreed that, in each case, such assignment
not (i) affect the obligations of the parties to any debt commitment letter; or (ii) materially impede or materially delay the
consummation of the Mergers or otherwise materially impede the rights of the holders of shares of Company Stock, Company Equity
Awards and Company Options pursuant to this Agreement. Subject to the preceding sentence, this Agreement will be binding upon and
will inure to the benefit of the Parties and their respective successors and permitted assigns. No assignment by any Party will
relieve such Party of any of its obligations under this Agreement. Any purported assignment in violation of this Agreement is
void.
9.16.
No Recourse. In no event will the Company, whether prior to or after termination of this Agreement, seek or
obtain, nor will it permit any of its Representatives to seek or obtain, nor will any other Person be entitled to seek or obtain, any
monetary recovery or monetary award of any kind (including consequential, special, indirect or punitive damages) against any Parent Related
Party with respect to this Agreement, the Equity Commitment Letters or the Guarantees or the transactions contemplated hereby and thereby
(including any breach by any of the Guarantors, Parent or Merger Subs), the termination of this Agreement, the failure to consummate the
transactions contemplated hereby or any claims or actions under applicable Laws arising out of any such breach, termination or failure,
except, in each case, for claims that the Company may assert (a) against any Person that is a party to, and solely pursuant to
the terms and conditions of, the Confidentiality Agreement or the Support Agreement; (b) against Parent or Merger Subs to the
extent expressly provided for in this Agreement, the Guarantees or the Equity Commitment Letters or (c) against the Guarantors
to the extent expressly provided for in this Agreement, the Guarantees or the Equity Commitment Letters.
9.17.
Necessary Further Actions. If, at any time after the Company Merger Effective Time, any further action is
determined by Parent or the Surviving Corporation to be necessary or desirable to carry out the purposes of this Agreement or to vest
in the Surviving Corporation the full right, title and possession of and to all rights and property of Merger Subs and the Company, the
officers and directors of the Surviving Corporation shall be fully authorized (in the name of Merger Subs, in the name of the Company
and otherwise) to take such action.
9.18.
No Liability for Financing Sources. Notwithstanding anything to the contrary herein, none of the Company nor
any of its Related Parties shall have any rights or claims against any of the Financing Sources in connection with this Agreement, the
Debt Financing or the transactions contemplated hereby or thereby, whether at law or equity, in contract, in tort or otherwise; provided
that nothing in this Section 9.18 shall in any way limit or modify (a) the rights and obligations of Parent and Merger Sub
under this Agreement, any debt commitment letters or, to the extent entered into prior to the Closing, the definitive financing agreements
related to the Debt Financing or any Financing Source’s obligations to Parent and Merger Sub under any debt commitment letter or
(b) the rights of the Company and its Subsidiaries from and after the Company Merger Effective Time under any debt commitment letter or
any definitive agreements relating to the Debt Financing executed in connection with the Debt Financing (but not, for the avoidance of
doubt, under this Agreement) to the extent the Company or its Affiliates are party thereto.
[Signature Page Follows]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the Parties as of the date first
written above.
|
FERDINAND
FFP ACQUISITION, LLC |
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By: |
/s/ David Winokur |
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Name: |
David Winokur |
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Title: |
President |
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FERDINAND
FFP MERGER SUB 1, INC. |
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By: |
/s/ David Winokur |
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Name: |
David Winokur |
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Title: |
President |
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FERDINAND
FFP MERGER SUB 2, LLC |
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By: |
/s/ David Winokur |
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Name: |
David Winokur |
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Title: |
President |
[Signature Page to Agreement and Plan
of Merger]
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FOCUS
FINANCIAL PARTNERS INC. |
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By: |
/s/
Ruediger Adolf |
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Name: |
Ruediger
Adolf |
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Title: |
Chief
Executive Officer |
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FOCUS
FINANCIAL PARTNERS, LLC |
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By: |
Focus
Financial Partners Inc., as Managing Member of Focus LLC |
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By: |
/s/
Ruediger Adolf |
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Name: |
Ruediger
Adolf |
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Title: |
Chief
Executive Officer |
[Signature Page to Agreement
and Plan of Merger]
Annex
A
DEFINED TERMS
“Acceptable Confidentiality
Agreement” means an agreement with the Company that is either (a) in effect as of the date hereof; or (b) executed,
delivered and effective after the date hereof, in either case (i) containing provisions that require any counterparty thereto (and any
of its Affiliates and Representatives named therein) that receive non-public information of or with respect to the Company to keep such
information confidential (subject to customary exceptions), (ii) other than with respect to any immaterial provisions, containing confidentiality
provisions not less favorable to the Company in any material respect than the terms of the Confidentiality Agreements and (iii) that does
not (A) prohibit the Company from providing any information to Parent in accordance with, or otherwise complying with Section 6.2
or (B) provide for the reimbursement by the Company or any of its Subsidiaries of any of the counterparty’s costs or expenses.
“Acquisition Proposal”
means any proposal or offer from a Third Person relating to any transaction or series of related transactions that, if consummated, would
result in (a) a direct or indirect purchase or acquisition by a Third Person of the assets of the Company constituting fifteen
percent (15%) or more of the consolidated net revenues, net income or total assets (including equity securities of the Subsidiaries of
the Company) of the Company and its Subsidiaries, taken as a whole; (b) any direct or indirect purchase or acquisition by a Third
Person of beneficial ownership of fifteen percent (15%) or more of the total voting power of the Company; or (c) a direct or indirect
merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange,
business combination or other similar transaction involving the Company pursuant to which such Third Person (or its equityholders) would
hold securities representing fifteen percent (15%) or more of the total voting power of the Company (or the surviving or resulting entity)
after giving effect to such transaction.
“Advisory Client”
means any Person to which any RIA Subsidiary provides investment advisory or investment management (including sub-advisory or other similar)
services pursuant to an Advisory Contract.
“Advisory Contract”
means all agreements and arrangements that contemplate the performance by any RIA Subsidiary of discretionary or non-discretionary investment
advisory or investment management (including sub-advisory or other similar) services to, or otherwise managing any investment or trading
account of, or for, any Person, including, where applicable, Fund Documents.
“Advisory
Revenue” means, as of February 1, 2023, with respect to any Advisory Client, the aggregate annualized investment
advisory, sub-advisory, investment management, or similar fees for all accounts of such Advisory Client payable to the RIA
Subsidiaries, which shall be determined in the following manner: (a) if such fees are fixed and not increased or decreased by
reference to assets under management (including committed or invested capital, as applicable) or advisement, the applicable annual
fee contained in such Advisory Client’s Advisory Contract(s), and (b) if such fees are determined by reference to assets under
management (including committed or invested capital, as applicable) or advisement, the product of the assets under management with
respect to such Advisory Client as of the date hereof multiplied by the applicable annual fee rate or fee schedule contained in such
Advisory Client’s Advisory Contract(s), in each case, excluding incentive and performance fees and extraordinary items and net
of any applicable fee waivers, reimbursements, discounts, offsets for placement fees or organizational expenses or other offsets or
reductions (regardless of whether such discounts or reductions take effect after the date hereof), and net of any sub-advisory fees
paid.
“Affiliate”
means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control
with a second Person, provided the Guarantors and their respective controlled Affiliates shall be deemed Affiliates of Parent and Merger
Subs. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding the foregoing, no investment fund or investment vehicle affiliated with,
or managed or advised by, Stone Point Capital LLC (“Stone Point”) any or portfolio company (as such term is commonly
understood in the private equity industry) or investment of Stone Point or of any investment funds or investment vehicles affiliated with,
or managed or advised by, Stone Point (collectively, the “Excluded Affiliates”) shall be deemed to be an Affiliate
of either the Company or its Subsidiaries, on the one hand, or Parent or Merger Subs, on the other hand, and vice versa; provided
that the Excluded Affiliates shall be deemed to be (a) Affiliates of the Company and its Subsidiaries solely for purposes of the definition
of “Company Related Party” and (b) Affiliates of Parent and Merger Subs solely for purposes of the definition of “Parent
Related Party”, subclause (z) of Section 6.1(b)(xiii)(B), Section 6.1(b)(xxvi) and the final proviso of Section
6.5(e).
“Anti-Corruption
Laws” means all U.S. and applicable non-U.S. Laws relating to the prevention of corruption, money laundering, and bribery,
including the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, 18 U.S.C. §§ 1956 and 1957 and the Bank
Secrecy Act, as amended by the USA PATRIOT Act, 31 U.S.C. §§ 5311 et seq., and its implementing regulations, 31 C.F.R. Chapter
X.
“Authorized Officer”
has the meaning set forth in the Existing Credit Document.
“BD Subsidiary”
means any Person that is registered with the SEC as a broker-dealer under the Exchange Act that the Company owns, directly or indirectly,
twenty-five percent (25%) or more of the (x) assets, business or a line of operations that generates revenues composing twenty-five percent
(25%) or more in the aggregate of such Person’s earnings on a 36-month rolling basis or (y) equity or partnership capital of such
Person.
“Brokerage Client”
means any Person who receives brokerage, broker-dealer transaction processing, dealer, distributorship, custodial and related services,
or any other services that involve acting as a broker-dealer or any ancillary services and activities related or incidental thereto from
any BD Subsidiary.
“Business Day”
means any day ending at 11:59 p.m. (New York time) other than a Saturday or Sunday or a day on which banks in the County of New York,
New York are required or authorized to close.
“Business IP”
means (a) Owned IP, and (b) Intellectual Property Rights used in or necessary for the operation of the business of the Company or any
of its Subsidiaries.
“CFTC”
means the U.S. Commodity Futures Trading Commission.
“Class A Common
Stock” means the shares of Class A common stock, par value $0.01 per share, of the Company.
“Class A Rollover
Shares” has the meaning set forth in the Support Agreement.
“Class B Common
Stock” means the shares of Class B common stock, par value $0.01 per share of the Company.
“Closing TRA Payoff
Amount” means the TRA Payoff Amount minus the amount of any payments deferred under the TRA Holder Agreements pursuant to
the TRA Notes issued thereunder.
“Commodity Exchange
Act” means the U.S. Commodity Exchange Act.
“Common Units”
shall have the meaning set forth in the Focus LLC Agreement.
“Company Equity
Plan” means the Focus Financial Partners Inc. 2018 Omnibus Incentive Plan, as amended or restated.
“Company Related Party”
means any Related Party of the Company.
“Company Stock”
means the Class A Common Stock and the Class B Common Stock.
“Company Stockholder
Approval” means the adoption of this Agreement by the affirmative vote of the holders of a majority in voting power of the
outstanding shares of Company Stock, voting together as a single class, and entitled to vote thereon.
“Company System”
means the software, hardware, networks and other computer systems administered, controlled, owned, licensed or leased by the Company or
any of its Subsidiaries.
“Company Unaffiliated
Stockholder Approval” means the adoption of this Agreement by the affirmative vote of the holders of a majority in voting
power of the outstanding shares of Company Stock, voting together as a single class, held by the Unaffiliated Stockholders and entitled
to vote thereon.
“CPO Subsidiary”
means SCS Capital Management LLC, a Delaware limited liability company, and Ancora Alternatives LLC, an Ohio limited liability company.
“Cut-Off Time”
means, with respect to each Excluded Party, the earlier of (a) 11:59 p.m. Eastern Time on April 18, 2023 and (b) the time that such Excluded
Party otherwise ceases to be an Excluded Party in accordance with the definition of “Excluded Party”.
“CTA Subsidiary”
means Ancora Alternatives LLC, an Ohio limited liability company.
“Default”
has the meaning set forth in the Existing Credit Document.
“Employer Entities”
means, collectively, Focus LLC, Focus Operating, LLC, Focus Transition Services, LLC and Connectus Group LLC.
“Environmental
Law” means any Law relating to pollution, the protection of the environment or public or worker health and safety.
“ERISA Affiliate”
means each Person that, at any relevant time, could be treated together with the Company or any of its Subsidiaries, including any of
the Employer Entities, as a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414(b), (c), (m) or
(o) of the Code.
“Event of Default”
has the meaning set forth in the Existing Credit Document.
“Ex-Im Laws”
means all U.S. and applicable non-U.S. Laws relating to export, reexport, transfer, and import controls, including the Export Administration
Regulations, the customs and import Laws administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Exchange”
means with respect to any Person, any U.S. or non-U.S. securities, commodities, futures, options, derivatives or other financial product
exchange, transaction facility or other financial market or system (and its clearinghouse, if any) through which such Person or any of
its Affiliates conducts trading.
“Excluded Information”
means (i) any description of post-Closing capital structure, including descriptions of indebtedness or equity of Parent or any of its
Affiliates (including the Company and its Subsidiaries on or after the Closing Date), other than with respect to the Existing Credit Document
and any other Indebtedness of the Company and its Subsidiaries that is anticipated to remain outstanding following the Closing, (ii) any
description of the Debt Financing (including any such descriptions to be included in liquidity and capital resources disclosure and any
“description of notes”), (iii) any information that would customarily be provided by an underwriter or initial purchaser in
a customary offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities
Act, (iv) any information regarding any post-Closing or pro forma cost savings, synergies or other pro forma adjustments, pro forma information
(other than pro forma information relating to historical periods, not relating to the transactions contemplated by this Agreement, and
not otherwise required to be disclosed by the Company in connection with its public reporting) or projected information, (v) risk factors
relating to all or any component of the Debt Financing, (vi) financial statements or information required by Rules 3-05 (with respect
to, and only with respect to, the transactions contemplated by this Agreement), 3-09, 3-10 or 3-16 of Regulation S-X, Compensation Discussion
and Analysis or other information required by Regulation S-K Items 402 and 601, (vii) “segment” financial information and
disclosure, including, without limitation, any required by Regulation S-K Item 101(b) and FASB Accounting Standards Codification Topic
280, (viii) any financial information with respect to the Company and its Subsidiaries on a non-consolidated basis and (ix) any new performance
metrics of the Company.
“Excluded Party”
means any Third Person (a) who submits a written offer or proposal that constitutes a bona fide Acquisition Proposal to the Company
or any of its Representatives after the date hereof and prior to the No-Shop Period Start Date and (b) whose Acquisition Proposal
is determined by the Company Board (acting on the recommendation of the Special Committee), or the Special Committee, as applicable, in
good faith, after consultation with its financial advisors and outside legal counsel, prior to the start of the No-Shop Period Start Date,
to constitute, or is reasonably likely to result in, a Superior Proposal; provided, however, that a Third Person shall immediately cease
to be an Excluded Party (and the provisions of this Agreement applicable to Excluded Parties shall cease to apply with respect to such
Person) if (i) such Acquisition Proposal is withdrawn by such Third Person or (ii) such Acquisition Proposal, in the
good faith determination of the Company Board (acting on the recommendation of the Special Committee), or the Special Committee, as applicable,
(after consultation with its outside counsel and its financial advisor), no longer is, or is no longer reasonably likely to result in,
a Superior Proposal.
“Existing Credit
Document” means that certain First Lien Credit Agreement, dated as of July 3, 2017 (as amended, supplemented, waived or
otherwise modified from time to time), by and among Focus Financial Partners, LLC, the lenders party thereto, Bank of America, N.A., as
revolver administrative agent for the Lenders (as defined therein), Swing Line Lender (as defined therein) and L/C Issuer (as defined
therein) and Royal Bank of Canada, as term administrative agent for the Lenders.
“Filings”
means, with respect to the Company, any of its Subsidiaries or any of their officers, employees, consultants or similar Persons, as applicable,
all (i) Uniform Applications for Investment Adviser Registration as filed with the Investment Adviser Registration Depository on Form
ADV (Parts 1, 2A and 2B) and Form CRS, including all Forms DRP related thereto, (ii) Uniform Applications for Broker-Dealer Registration
on Form BD as filed with the Central Registration Depository, (iii) Forms U-4 and U-5 filed with the Registration Depository or the Investment
Adviser Registration Depository, as applicable, (iv) NFA Form 7-R or NFA Form 8-R, and (v) all other reports, schedules, forms, registrations
and other documents, together with any amendments required to be made with respect to any of the foregoing, that are or were required
to be filed under applicable law governing the operation of such Person’s business (including, as a broker-dealer, investment adviser,
commodity pool operator or commodity trading advisor, as applicable).
“FINRA”
means the Financial Industry Regulatory Authority, Inc.
“Financing
Sources” means the Persons (including the agents, arrangers and lenders) that have committed to provide, or have
otherwise entered into agreements in connection with the Debt Financing in connection with the transactions contemplated hereby
pursuant to any debt commitment letter, and any joinder agreements, indentures or credit agreements entered into pursuant thereto or
relating thereto, together with their respective Affiliates, and the respective officers, directors, employees, partners, trustees,
shareholders, controlling persons, agents, advisors and Representatives of the foregoing, and the respective successors and assigns
of the foregoing. It is understood and agreed that none of the Parent, the Parent Related Parties (other than any Parent Related
Party or any Affiliate of Parent that is a Financing Source and is not a Guarantor under a Limited Guarantee or party to the Equity
Commitment Letter), the Guarantors, and the funds party to the Equity Commitment Letter will be Financing Sources for any purposes
of this Agreement.
“Focus LLC Units”
means Common Units and Incentive Units of Focus LLC.
“Focus LLC Agreement”
means the Fourth Amended and Restated Limited Liability Company Agreement of Focus LLC dated as of July 30, 2018, as amended.
“Fund Documents”
means with respect to an Advisory Client that is a Private Fund, the then-current limited partnership agreement, limited liability company
agreement, operating agreement, shareholders’ agreement, memorandum and articles of association, or similar governing document governing
the operations of any entities that comprise such pooled vehicle, as well as the then-current offering documents (if any) of such pooled
vehicle.
“Group”
shall have the meaning given to such term under Section 13 of the Exchange Act.
“Hazardous Substance”
means any material, substance, chemical, contaminant or waste that is listed, regulated, classified or defined as hazardous, toxic or
as a pollutant, or for which liability or standards of conduct may be imposed, under any Environmental Law, including, without limitation,
any petroleum compounds or petroleum derivatives, radioactive materials, radon, asbestos and asbestos containing materials, per- and polyfluoroalkyl
substances, pesticides, odor, noise, regulated levels of mold or polychlorinated biphenyls.
“Incentive Unit”
shall have the meaning set forth in the Focus LLC Agreement.
“Indebtedness”
means, with respect to any Person, without duplication, as of the date of determination, means all indebtedness, liabilities and obligations,
now existing or hereafter arising, for money borrowed by a Person, or any contingent liability for or guaranty by a Person of any obligation
of any other Person (including the pledge of any collateral or grant of any security interest by a Person in any property as security
for any such liability, guaranty or obligation) whether or not any of the foregoing is evidenced by any note, indenture, guaranty or agreement,
but excluding all trade payables incurred in the ordinary course of business.
“Intellectual
Property Rights” means, in any and all jurisdictions throughout the world, all intellectual property and proprietary rights,
including all (a) patents, divisionals, continuations, renewals, extensions, reexaminations, inventions, trademarks, trade names,
trade dress, domain names, copyrights, designs and trade secrets, (b) applications for and registrations of patents, trademarks,
service marks, trade names, trade dress, domain names, copyrights and designs, (c) processes, formulae, methods, schematics, technology,
know-how, computer software programs (including source code and object code) and applications, data and databases and (d) other
intangible proprietary or confidential information.
“Investment Advisers
Act” means the U.S. Investment Advisers Act of 1940.
“Investment Company
Act” means the U.S. Investment Company Act of 1940.
“Knowledge”
means, when used with respect to the Company, the actual knowledge of any of the Persons listed on Section A.1 of the Company
Disclosure Schedule and, with respect to Parent, the actual knowledge of any of the Persons listed on Section A.1 of the Parent
Disclosure Schedule, in each case, after reasonable inquiry of such Person’s direct reports who would reasonably be expected
to have actual knowledge of the matter in question.
“Leased Real Property”
means the leasehold or subleasehold interests and any other rights to use or occupy any land, buildings, structures, improvements, fixtures
or other interests in real property held by the Company or any of its Subsidiaries under the Real Property Leases.
“Legacy Unitholders”
means any holders of Focus LLC Units (other than the Company and its wholly owned Subsidiaries) immediately prior to the Rollover of the
Rollover Units.
“Lien”
means any mortgage, lien, license, pledge, charge, security interest, deed of trust, U.S. Uniform Commercial Code lien, right of first
refusal, easement, or similar encumbrance in respect of any property or asset, including any restriction on the voting of any security,
any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset or any restriction on the possession, exercise or transfer of any other attribute of ownership of
any asset.
“Owned IP”
means any Intellectual Property Rights owned by the Company or any of its Subsidiaries, which shall include the Registered Intellectual
Property.
“Marketing
Period” means (A) at all times to and including June 27, 2023, the first period of seventeen (17) consecutive Business
Days after the date hereof throughout and at the end of which (i) Parent shall have the Required Information and (ii) the conditions
set forth in Sections 7.1 and 7.2 shall be satisfied or, to the extent permitted by applicable Law, waived (other than
those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those
conditions) and nothing has occurred and no condition exists that would cause any of the conditions set forth in Sections 7.1
and 7.2 to fail to be satisfied assuming the Closing were to be scheduled for any time during such seventeen (17) Business
Day period and (B) at all times from and after June 27, 2023, the first period of seventeen (17) consecutive Business Days after the
date hereof throughout and at the end of which (i) Parent shall have the Required Information and (ii) the conditions set forth in Sections
7.1 and 7.2 shall be satisfied or, to the extent permitted by applicable Law, waived (other than (I) those conditions
that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions and (II) the
conditions set forth in Sections 7.1(a), 7.1(b), 7.2(f) and 7.2(g), it being understood that this clause
shall not constitute a waiver of such conditions for purposes of Article VII)) and nothing has occurred and no condition
exists that would cause any of the conditions set forth in Sections 7.1 and 7.2 (other than the conditions set forth
in Sections 7.1(a), 7.1(b), 7.2(f) and 7.2(g) if such conditions were not satisfied at the commencement
of such seventeen (17) consecutive Business Day period as contemplated by clause (II) of the immediately preceding parenthetical
above) to fail to be satisfied assuming the Closing were to be scheduled for any time during such seventeen (17) consecutive
Business Day period; provided, that notwithstanding anything to the contrary in the foregoing clauses (A) and (B), the
Marketing Period shall not commence until the 30th day after the Notice Date; provided, further, that in the case of
each of clauses (A) and (B), that (1) (x) July 3, 2023 and November 24, 2023 shall not constitute a Business Day for the purposes of
calculating such seventeen (17) consecutive Business Day period and (y) if such seventeen (17) consecutive Business Day period shall
not have ended on or prior to August 18, 2023, then such seventeen (17) consecutive Business Day period shall not commence prior to
September 5, 2023, (2) the Marketing Period shall not be deemed to have commenced if, after the date hereof and prior to the Closing
Date, (A) any of the historical financial statements that are included in the Required Information become stale under
Regulation S-X or under customary practices for offerings and private placements of high-yield debt securities under Rule 144A
promulgated under the Securities Act, in which case the Marketing Period will not be deemed to commence unless and until, at the
earliest, the Company furnishes Parent with updated Required Information, (B) Deloitte & Touche LLP (or any other auditor to the
extent financial statements audited by such auditor are to be included in the Required Information) shall have withdrawn its audit
opinion with respect to any of the audited financial statements of the Company or that are included in the Required Information, in
which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, a new unqualified audit opinion
is issued with respect to such financial statements by Deloitte & Touche LLP or another nationally-recognized independent public
accounting firm reasonably acceptable to Parent, (C) the Company restates or the Company Board has determined to restate or
Deloitte & Touche LLP (or any other auditor to the extent financial statements audited by such auditor are to be included in the
Required Information) has determined that it is necessary to restate any historical financial statements of the Company that are
included in the Required Information or the Company shall have determined or publicly announced that a restatement of any such
historical financial statements is required, in which case the Marketing Period shall not be deemed to commence unless and until, at
the earliest, such restatement has been completed or the Company Board subsequently concludes that no restatement shall be required
in accordance with U.S. GAAP or (D) the Required Information, taken as a whole, contains any untrue statement of a material fact or
omits to state any material fact, in each case with respect to the Company, necessary in order to make the statements contained in
the Required Information, in light of the circumstances under which they were made, not misleading, in which case the Marketing
Period shall not be deemed to commence unless and until such Required Information has been updated so that there is no longer any
such untrue statement or omission and (3) the Marketing Period shall end on any earlier date prior to the expiration of the
seventeen (17) consecutive Business Day period described above if the Debt Financing is actually funded on such earlier date; provided, further,
that if the Company shall in good faith reasonably believe it has provided the Required Information and that the Marketing Period
has commenced, it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery and
when it believes such period has commenced), in which case, subject to clauses (2)(A) through (2)(D) above, the Marketing Period
will be deemed to have commenced on the first Business Day immediately following the date of such notice unless Parent, in good
faith, believes the Marketing Period has not commenced and within four (4) Business Days after the delivery of such notice by the
Company, delivers a written notice to the Company to that effect and setting forth with reasonable specificity why Parent believes
the Marketing Period has not commenced.
“Material
Adverse Effect” means any change, effect, event, occurrence, circumstance, fact or development that is materially
adverse to the business or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that no
change, effect, event, occurrence, circumstance, fact or development resulting from the following shall constitute a Material
Adverse Effect or be taken into account in determining whether a Material Adverse Effect has occurred, is occurring or would be
occurring: (a) changes in the economy or financial, debt, credit or securities markets generally in the United States or any
other country or region in the world, or changes in conditions in the global economy generally; (b) changes generally affecting
the industries (including the financial services industry) in which the Company and its Subsidiaries operate; (c) changes in
United States generally accepted accounting principles (“U.S. GAAP”) or in any Law, or the official
interpretations thereof; (d) changes in any political or geopolitical, regulatory, legislative or social conditions, acts of
war (whether or not declared), hostilities, military actions or acts of terrorism, or any escalation or worsening of the foregoing;
(e) weather conditions or acts of God (including storms, earthquakes, tsunamis, tornados, hurricanes, pandemics (including
SARS-CoV-2 or COVID-19, any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks
(“COVID-19”)), epidemics or other outbreaks of disease, quarantine restrictions, floods, droughts or other
natural disasters and force majeure events) (or escalation or worsening of any such events or occurrences, including, as applicable,
subsequent wave(s)); (f) any capital market conditions, in each case in the United States or any other country or region in the
world; (g) any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure,
sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any Governmental Authority, including the
Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to
COVID-19 (“COVID-19 Measures”); (h) a decline, in and of itself, in the price or trading volume of
the shares of Class A Common Stock on the Nasdaq Global Select Market or any other securities market or in the trading price of any
other securities of the Company or any of its Subsidiaries; provided that the underlying causes of any such decline may be taken
into account unless (and to the extent) such underlying cause would otherwise be excluded by other clauses of this definition;
(i) any failure, in and of itself, by the Company to meet any internal or published projections, forecasts, estimates or
predictions of revenues, earnings, cash flow or cash position or other financial metrics (whether such projections, forecasts,
estimates or predictions were made by the Company or independent third parties) for any period; provided that the underlying causes
of any such failure may be taken into account unless (and to the extent) such underlying cause would otherwise be excluded by other
clauses of this definition; (j) (x) the identity of Parent or Merger Subs, or (y) the execution and delivery or
performance of this Agreement, or (z) announcement, pendency or consummation of this Agreement or the transactions contemplated
hereby, including the Merger, including, in each case the impact thereof on relationships with lenders, employees, customers,
suppliers, distributors, partners, vendors or other Persons (provided, that this clause (j) shall not apply (A) to any
representation or warranty contained in this Agreement to the extent that such representation or warranty is intended to address the
consequences of the negotiation, execution or delivery of this Agreement, the performance of the requirements of this Agreement or
the announcement, pendency or consummation of this Agreement or the transactions contemplated hereby or for the purpose of the
condition set forth in Section 7.2(a) as it relates to such representations and warranties or (B) with respect to the
consents described in Section 6.19, and the failure to obtain the consents described in Section 6.19 on or prior to
the Closing shall be taken into account for determining whether a Material Adverse Effect has occurred); (k) any action or
claim made or brought by any of the current or former stockholders of the Company or Members of Focus LLC (or on their behalf or on
behalf of the Company or Focus LLC) against the Company, Focus LLC or any of their respective directors, officers or employees
arising out of this Agreement or the transactions contemplated hereby, including the Merger; (l) any action or inaction by
the Company or its Subsidiaries taken or omitted to be taken (x) by the Special Committee or the Company or any of its Subsidiaries
expressly required by this Agreement or (y) at the written request of Parent or Merger Subs or with the written consent of Parent or
Merger Subs or expressly required by this Agreement (provided, that this clause (l) shall not apply to any representation or
warranty contained in this Agreement to the extent that such representation or warranty is intended to address the consequences of
the performance of the requirements of this Agreement or for the purpose of the condition set forth in Section 7.2(a) as it
relates to such representations and warranties); or (m) the availability or cost of equity, debt or other financing to
Parent or Merger Subs; except, in the case of clause (a) through clause (f) (other than, in the case of clause (e),
any change, effect, event, occurrence or development with respect to COVID-19 or the COVID-19 Measures or any escalation or
worsening thereof (including any subsequent waves)), to the extent the Company and its Subsidiaries, taken as a whole, are
disproportionately adversely affected by such changes, effects, events, occurrences or developments, compared to other, similarly
situated companies in the financial services sector and then solely to the extent of any such disproportionality.
“Maximum Incremental
Facilities Amount” has the meaning set forth in the Existing Credit Document.
“NFA”
means National Futures Association.
“Non-Controlled
Stock” means Common Stock held by a CD&R Portfolio Company or a Stone Point Portfolio Company, as applicable, (a) in
trust, managed, brokerage, custodial, nominee or other customer accounts or (b) in mutual funds, open or closed end investment funds or
other pooled investment vehicles (including limited partnerships and limited liability companies) sponsored, managed or advised or sub-advised
by such CD&R Portfolio Company or Stone Point Portfolio Company, as applicable, in each case acquired and held in the ordinary course
of the securities, commodities, derivatives, asset management, banking or similar businesses of any such CD&R Portfolio Company or
Stone Point Portfolio Company, as applicable.
“Non-Fund Client”
means each Advisory Client that is not a Private Fund or Registered Fund.
“Parent Related
Party” means any Related Party of Parent.
“Permitted
Liens” means: (a) Liens for Taxes or assessments that are (i) not yet due or delinquent or (ii) being
contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with U.S.
GAAP; (b) statutory liens or landlords’, carriers’, warehousemen’s, mechanics’, suppliers’,
workmen’s, materialmen’s or repairmen’s liens or other like Liens arising or incurred in the ordinary course of
business; (c) with respect to the Leased Real Property, (i) easements, covenants, conditions, restrictions or other
similar matters of record that do not materially impair the use, occupancy or value of such Leased Real Property, including any
other agreements, conditions or restrictions that are shown by a current title report or other similar report or listing or implied
by law, including easements for streets, alleys, highways, telephone lines, power lines, and railways, and all matters of public
record, (ii) zoning, building, subdivision or other similar requirements or restrictions which are imposed by any Governmental
Authority of competent jurisdiction which are not violated by the current use or occupancy of such Leased Real Property or the
operation of the business thereon and (iii) mechanics liens and similar liens for labor, materials or supplies provided with
respect to such Leased Real Property incurred in the ordinary course of business for amounts which are not due and payable;
(d) pledges or deposits under workmen’s compensation Laws, unemployment insurance Laws, social security, retirement or
similar legislation, or good-faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness)
or leases to which such entity is a party, or deposits to secure public or statutory obligations of such entity or to secure or
appeal bonds to which such entity is a party, or deposits as security for contested Taxes, in each case incurred or made in the
ordinary course of business; (e) non-exclusive licenses and similar non-exclusive rights granted by the Company with respect to
Intellectual Property Rights granted in the ordinary course of business; (f) Liens, charges, fees or assessments for business
parks, industrial parks or other similar organizations not yet due or delinquent; and (g) Liens to the extent specifically
disclosed or reflected on the consolidated balance sheet of the Company for the year ended December 31, 2022 (or any notes thereto)
or securing Indebtedness or other obligations reflected on such balance sheet or otherwise disclosed on the Company Disclosure
Schedule.
“Person”
means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, Governmental Authority or other entity of any kind or nature.
“Pre-Closing Flow-Through
Tax Return” means any Tax Return relating to Pre-Closing Flow-Through Taxes.
“Pre-Closing Flow-Through
Taxes” means U.S. federal income, state, and local taxes and any other Taxes determined on a flow-through basis (i.e., reported
at the entity level but with respect to which items of income, gain, loss or deduction or other Tax attributes or Taxes are allocated
to the direct or indirect beneficial owners of the entity) with respect to Focus LLC or any of its Subsidiaries relating to any Pre-Closing
Tax Period.
“Pre-Closing Tax
Period” means any Tax period (or portion of any Tax period) ending on or prior to the Closing Date.
“Private Fund”
means an Advisory Client that (a) is a pooled investment vehicle that is not registered, or required to register, as an investment
company under the Investment Company Act of 1940 and (b) is sponsored, managed, or advised by a Subsidiary of the Company or for
which a Subsidiary of the Company acts as the general partner, managing member or equivalent authority.
“Pro Rata Bonus
Amount” means for each participant in the 2023 Annual Bonus Plans, an amount equal to the accrued amount as of Closing for
each such participant’s annual bonus opportunity in respect of the 2023 fiscal year based on actual performance for the 2023 fiscal
year through Closing (determined in the ordinary course of business, consistent with past practice).
“Processed”
means access, collection, use, processing, storage, sharing, distribution, transfer, disclosure, destruction, modification, compromise,
transmit, theft, loss, security, or disposal of or to, any data or information (including any trade secret) or any Company System.
“Protected
Information” means personally identifying or other information and data that is subject to any applicable Law or
defined as “personal information” or a similar term under applicable Law (whether of employees, contractors,
consultants, customers, consumers, or other Persons and whether in electronic or any other form or medium) or that is accessed,
collected, used, processed, stored, shared, distributed, transferred, disclosed, destroyed, modified, compromised, transmitted or
disposed of by or on behalf of the Company or any of its Subsidiaries.
“Real Property
Leases” means the leases, subleases, licenses or other agreements, including all amendments, extensions, renewals, guaranties
or other agreements with respect thereto, under which the Company or any of its Subsidiaries uses or occupies or has the right to use
or occupy any real property.
“Registered Fund”
means any Advisory Client that is registered as an investment company under the Investment Company Act.
“Registered Intellectual
Property” means all Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries
and issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority and, with respect
to domain name registrations owned or purported to be owned by the Company, domain name register.
“Regulation S-K”
shall mean Regulation S-K promulgated under the Securities Act
“Regulation S-X”
shall mean Regulation S-X promulgated under the Securities Act.
“Related Party”
means, with respect to a Party, such Party and any of such Party’s respective former, current or future Affiliates and any of the
foregoing’s respective former, current or future, direct or indirect, officers, directors, employees, Affiliates, shareholders,
equity holders, managers, members, partners, agents, attorneys, advisors, financing sources or other Representatives or any of the foregoing’s
respective successors or assigns.
“Representative”
means, with respect to any Person, its directors, officers, employees, investment bankers, financial advisors, attorneys, accountants,
and other representatives and advisors.
“Required
Information” means (A) (1) the audited consolidated balance sheets and the related audited consolidated
statements of income or operations, stockholders’ equity and cash flows of the Company for the two most recently completed
fiscal years of the Company ended at least seventy-five (75) days prior to the Closing Date, together with all related notes and
schedules thereto, and in each case accompanied by the audit reports thereon of Deloitte & Touche LLP, and (2) the
unaudited consolidated balance sheets and related consolidated statements of income or operations, stockholders’ equity and
cash flows of the Company for any subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date and the portion
of the fiscal year through the end of such quarter (other than in each case the fourth quarter of any fiscal year) and, in each
case, for the comparable period of the prior fiscal year, together with all related notes and schedules thereto, in the case of each
of clauses (1) and (2) above, prepared in accordance with U.S. GAAP and in compliance with Regulation S-X (other than Rules 3-09,
3-10 and 3-16 of Regulation S-X) and which, with respect to clause (2), shall have been reviewed by the independent auditors of the
Company as provided in AU 722, but in each case, excluding Excluded Information and, if reasonably requested by Parent and consented
by the Company (which consent shall not be unreasonably withheld, conditioned or delayed), “flash” financial information
with respect to a completed fiscal period for which financial statements are not yet available; provided that (other than with
respect to “flash” financials) the filing of the required financial statements on Form 10-K and Form 10-Q within such
time periods by the Company will satisfy the requirements of this clause (1) and (2), (B) other historical financial
information (other than Excluded Information) reasonably necessary to allow Parent to prepare pro forma financial statements
(including for the most recent four (4) fiscal quarter period ended at least forty (40) days prior to the Closing Date (or, if the
end of the most recently completed four (4) fiscal quarter period is the end of a fiscal year, ended at least seventy-five (75) days
prior to the Closing Date)) that give effect to the transactions contemplated hereunder as if the transactions had occurred as of
such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income or
operations) and which are prepared in accordance with U.S. GAAP, but which need not be prepared in compliance with Regulation S-X or
include adjustments for purchase accounting to the extent not customary in private placements pursuant to Rule 144A promulgated
under the Securities Act; (C) such other financial data, audit reports, business and other information (including a customary
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the
Company’s financial statements described in clauses (A) and (B) above and customary due diligence materials with respect to
the Company) of the type that would be required by Regulation S-X and Regulation S-K (in each case other than Excluded Information)
for a registered public offering of non-convertible debt securities of Parent (including for Parent’s preparation of pro forma
financial statements), in each case to the extent the same is of the type and form customarily included in, and subject to other
exceptions that are customary for, an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A
promulgated under the Securities Act, or otherwise necessary to receive from the independent auditors of the Company (and any other
auditor to the extent financial statements audited or reviewed by such auditor are or would be included in such offering memorandum)
customary “comfort” (including “negative assurance” and change period comfort) with respect to the financial
information of the Company to be included in such offering memorandum, but in each case excluding Excluded Information; provided
that the filing of the required information on Form 10-K and Form 10-Q within such time periods by the Company will satisfy the
requirements of this clause (C), (D) the consents of the Company’s auditors for use of their audit reports with respect
to the financial statements described in clause (A) above in any materials relating to the Debt Financing; and (E) the draft
comfort letters referred to in Section 6.18(a)(x).
“Requisite Company
Stockholder Approvals” means (a) the Company Stockholder Approval and (b) the Company Unaffiliated Stockholder
Approval.
“Restricted Payments”
has the meaning set forth in the Existing Credit Document.
“RIA Subsidiary”
means any Person that is registered with the SEC as an investment adviser under the Investment Advisers Act that the Company, directly
or indirectly (a) owns, has the right to vote or has the power to sell or direct the sale of twenty-five percent (25%) or more of the
voting securities of such Person or (b) if such Person is a partnership or limited liability company, has contributed 25% of such Person’s
capital, or has the right to receive 25% of such Person’s capital upon dissolution.
“Rollover”
has the meaning set forth in the Support Agreement.
“Rollover Stockholders”
means the holders of Class A Rollover Shares. For the avoidance of doubt, all Rollover Stockholders shall be treated economically pari
passu with respect to the equity consideration received in exchange for shares of Class A Common Stock and Focus LLC Units contributed
by them to Parent (or any direct or indirect parent company thereof).
“Rollover Units”
has the meaning set forth in the Support Agreement.
“Sanctioned Country”
means any country or region or government thereof that is, or has been in the last five years, the subject or target of a comprehensive
embargo under Trade Controls (including Cuba, Iran, North Korea, Syria, Venezuela, and the Crimea, the so-called “Donetsk People’s
Republic,” and the so-called “Luhansk People’s Republic” regions of Ukraine).
“Sanctioned Person”
means any Person that is the subject or target of Sanctions or restrictions under Trade Controls including: (a) any Person listed
on any U.S. or non-U.S. Sanctions- or export-related restricted party list, including the U.S. Department of the Treasury Office of Foreign
Assets Control’s (“OFAC”) List of Specially Designated Nationals and Blocked Persons, or any other OFAC,
U.S. Department of Commerce Bureau of Industry and Security, or U.S. Department of State Sanctions- or export-related restricted party
list; (b) any Person that is, in the aggregate, 50 percent or greater owned, directly or indirectly, or otherwise controlled by
a Person or Persons described in clause (a); or (c) any Person located, organized, or resident in or a national of a Sanctioned
Country.
“Sanctions”
means all U.S. and applicable non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the
United States (including by OFAC or the U.S. Department of State) and the United Nations Security Council.
“Securityholder
Representative” means Ruediger Adolf.
“Solvent”
means, with respect to any Person, that (a) the fair saleable value (determined on a going concern basis) of the assets of such
Person, together with its Subsidiaries, taken as a whole, is greater than the total amount of such Person’s liabilities (including
all liabilities, whether or not reflected on a balance sheet prepared in accordance U.S. GAAP, and whether direct or indirect, fixed or
contingent, secured or unsecured, disputed or undisputed); (b) such Person is able to pay its debts and obligations in the ordinary
course of business as they become due; and (c) such Person, together with its Subsidiaries, taken as a whole, will not have an
unreasonably small amount of capital to carry on its businesses and all businesses in which it is about to engage.
“Subsidiary”
means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their
terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or
indirectly owned or controlled by such Person or by one or more of its Subsidiaries (including, with respect to the Company, each BD Subsidiary,
RIA Subsidiary, CPO Subsidiary and the CTA Subsidiary).
“Superior
Proposal” means a bona fide written Acquisition Proposal (with references to fifteen (15%) being deemed to be replaced
with references to fifty percent (50%)) by a Person or Group (other than the Rollover Stockholders, Parent, Merger Subs and their
respective Affiliates) that (a) was not the result of a breach of Section 6.2 and (b) the Company Board,
acting upon the recommendation of the Special Committee or the Special Committee determines in good faith, after consultation with
its financial advisors and outside legal counsel, would, if consummated, result in a transaction that is more favorable from a
financial point of view to the stockholders of the Company (in their capacities as such) than the Merger, and after taking into
account (x) any revisions to this Agreement, the Guarantees and the financing committed to by Parent in writing prior to the time of
such determination; (y) the availability of financing (to the extent applicable), likelihood of consummation in accordance with the
terms of such Acquisition Proposal and regulatory considerations; and (z) those factors and matters deemed relevant by the Company
Board, acting upon the recommendation of the Special Committee, or the Special Committee, including (A) the identity of the Person
making the proposal; and (B) legal, financial (including financing terms and the form, amount and timing of payment of
consideration), regulatory, certainty of closing, timing and other aspects of such Acquisition Proposal.
“Tax”
or “Taxes” means any and all U.S. federal, state, and local and non-U.S. taxes, duties, imposts, fees, levies,
assessments or any other governmental charges in the nature of a tax, including, but not limited to, income, corporate, profits, capital,
excise, property, sales, use, employment turnover, value added and franchise taxes, deductions, withholdings and custom duties, together
with all interest, penalties, and additions to tax imposed with respect to such amounts by any Governmental Authority and any interest
in respect of such penalties and additions.
“Tax Receivable
Agreements” mean (a) the Tax Receivable Agreement, dated as of July 30, 2018, by and among the Company and the parties named
therein, (b) the Tax Receivable Agreement, dated as of July 30, 2018, by and among the Company and the parties named therein and (c) the
Tax Receivable Agreement, dated as of March 25, 2020, by and among the Company and the parties named therein.
“Tax Return”
means any return, report, declaration, claim for refund, information return or other similar document filed or required to be filed with
any Governmental Authority in connection with the determination, assessment, collection or administration of any Tax, including any schedule,
attachment or supplement thereto, and including any amendment thereof.
“Third Person”
means any Person or Group, other than (a) the Company or any of its controlled Affiliates or (b) Parent, Merger Subs,
the Guarantors or any their respective Affiliates or any Group including Parent, Merger Subs, the Guarantors or any their respective Affiliates.
“TRA Payoff Amount”
means the aggregate payment obligations of the Company and its Subsidiaries pursuant to the terms of the Tax Receivable Agreements, including
as a result of the transactions contemplated by this Agreement (including, for the avoidance of doubt, any such payments required to be
made pursuant to Section 4.2 of each Tax Receivable Agreement).
“Unaffiliated
Stockholders” means the holders of Company Stock, excluding those shares of Company Stock held, directly or
indirectly, by or on behalf of: (a) Clayton, Dubilier & Rice, LLC (“CD&R”), its investment fund
Affiliates and its portfolio companies majority owned by such investment fund Affiliates with respect to which CD&R has the
right to vote or direct the voting of such shares held by such portfolio companies (a “CD&R Portfolio
Company”) (and excluding any shares of Common Stock that constitute Non-Controlled Stock); (b) Stone Point, its
investment fund Affiliates, its portfolio companies majority owned by such investment fund Affiliates with respect to which Stone
Point has the right to vote or direct the voting of such shares held by such portfolio companies (a “Stone Point
Portfolio Company”) (and excluding any shares of Common Stock that constitute Non-Controlled Stock) and those members
of the Company Board who are employees of Stone Point or one of its investment fund Affiliates; and (c) any person that the Company
has determined to be an “officer” of the Company within the meaning of Rule 16a-1(f) of the Exchange Act.
“Vested”
means, with respect to any Focus LLC Unit, that such Focus LLC Unit is outstanding and vested as of immediately prior to the Vested Units
Exchange (or that it will become vested (a) by its terms (and without further action by the Company other than determinations regarding
performance-based vesting in accordance with this Agreement) as a result of the transactions contemplated by this Agreement or (b) pursuant
to the terms of this Agreement).
“Willful Breach”
means a material breach of this Agreement that is a consequence of a willful or deliberate act or failure to act by a Party that knows
or would reasonably be expected to have known that the taking of such act or failure to act would, or would reasonably be expected to,
cause a breach of this Agreement.
Term |
|
Section |
2023 Annual Bonus Plans |
|
6.9(c) |
Action |
|
5.1(h)(i) |
Affirmative Consent Notice |
|
6.19(a) |
Agreement |
|
Preamble |
Agreed Early Termination Documents |
|
6.17 |
Alternative Acquisition Agreement |
|
6.2(e)(iv) |
Antitrust Law |
|
6.5(f) |
Applicable Date |
|
5.1(e)(i) |
Bankruptcy and Equity Exception |
|
5.1(c)(i) |
Benefit Plans |
|
5.1(i)(i) |
Bylaws |
|
2.4 |
BD Associated Person |
|
5.1(y)(v) |
Cash Sweep Program |
|
5.1(z)(v) |
CD&R |
|
Recitals |
Certificates of Merger |
|
1.4(a) |
CFTC Associated Person |
|
5.1(y)(v) |
Change of Recommendation |
|
6.2(e)(iv) |
Charter |
|
2.1 |
Chosen Courts |
|
9.5(a) |
Client Consent Notices |
|
6.19(a) |
Closing |
|
1.3 |
Closing Date |
|
1.3 |
CMA |
|
6.19(f) |
Code |
|
4.4(g) |
Company |
|
Preamble |
Company Board |
|
Recitals |
Company Certificate of Merger |
|
1.4(a) |
Term |
|
Section |
Company Disclosure Schedule |
|
5.1 |
Company Equity Awards |
|
5.1(b)(ii) |
Company Liability Limitation |
|
8.2(d)(ii) |
Company Merger |
|
Recitals |
Company Merger Effective Time |
|
1.4(a) |
Company Merger Sub |
|
Preamble |
Company Option |
|
4.5(a)(i) |
Company Permits |
|
5.1(j)(ii) |
Company Recommendation |
|
5.1(c)(iii) |
Company Reports |
|
5.1(e)(i) |
Company Restricted Share |
|
4.5(c) |
Company RSUs |
|
4.5(b) |
Company Stock |
|
Recitals |
Company Stockholders Meeting |
|
6.4 |
Company Termination Fee |
|
8.2(b) |
Confidential Information |
|
5.1(q)(i) |
Confidentiality Agreement |
|
6.6(b) |
Contingent Cash Award |
|
4.5(a)(ii) |
Continuing Employee |
|
6.9(a) |
Contract |
|
5.1(d)(ii) |
Data Security Requirements |
|
5.1(q)(iii) |
Debt Financing |
|
6.18(a) |
Debt Marketing Materials |
|
6.18(a)(iii) |
Disqualification Events |
|
5.1(y)(viii) |
D&O Insurance |
|
6.11(c) |
DGCL |
|
Recitals |
DLLCA |
|
Recitals |
Dissenting Shares |
|
4.2(a) |
DOJ |
|
6.5(b) |
Draft Early Termination Documents |
|
6.17 |
DTC |
|
4.4(c)(i) |
Enforcement Costs |
|
8.2(c) |
Equity Commitment Letters |
|
5.2(f)(i) |
Equity Financing |
|
5.2(f)(i) |
ERISA |
|
5.1(i)(i) |
ERISA Client |
|
5.1(x)(ii) |
Exchange Act |
|
5.1(d)(i) |
Excluded Benefits |
|
6.9(a) |
Excluded Shares |
|
4.2(a) |
Excluded Units |
|
4.3(a) |
Existing Stockholders |
|
Recitals |
Financing Conditions |
|
5.2(f)(ii) |
FINRA Approvals |
|
6.19(f) |
Focus LLC |
|
Preamble |
Fund Board |
|
6.19(c)(i) |
Term |
|
Section |
FTC |
|
6.5(b) |
Go-Shop Period |
|
6.2(a) |
Governmental Authority |
|
5.1(d)(i) |
Guarantees |
|
Recitals |
Guarantor |
|
Recitals |
HSR Act |
|
5.1(d)(i) |
Indemnified Party or Indemnified Parties |
|
6.11(a) |
Independent Expert |
|
6.17 |
Insurance Policies |
|
5.1(r) |
Interim Advisory Contract |
|
6.19(c)(i) |
International Plan |
|
5.1(i)(vi) |
Intervening Event |
|
6.2(f)(ii) |
IRS |
|
5.1(i)(i) |
Labor Agreement |
|
5.1(p)(i) |
Laws |
|
5.1(j)(i) |
LLC Certificate of Merger |
|
1.4(a) |
LLC Merger |
|
Recitals |
LLC Merger Effective Time |
|
1.4(a) |
LLC Merger Sub |
|
Preamble |
Match Period |
|
6.2(f)(i) |
Material Contract |
|
5.1(k)(i) |
Maximum Premium |
|
6.11(c) |
Mergers |
|
Recitals |
Merger Consideration |
|
4.2(a) |
Multiemployer Plan |
|
5.1(i)(ii) |
Negative Consent Client |
|
6.19(a) |
Negative Consent Notice |
|
6.19(a) |
New York Courts |
|
9.5(a) |
No-Shop Period Start Date |
|
6.2(a) |
Objections Statement |
|
6.17 |
Option Consideration |
|
4.5(a)(i) |
Order |
|
7.1(c) |
Outside Date |
|
8.1(b) |
Parent |
|
Preamble |
Parent Disclosure Schedule |
|
5.2 |
Parent Liability Limitation |
|
8.2(e) |
Parties |
|
Preamble |
Paying Agent |
|
4.4(a) |
Payment Fund |
|
4.4(b) |
Plan Assets |
|
5.1(x)(i) |
Plan Clients |
|
5.1(x)(ii) |
Pre-Closing Period |
|
6.1(a) |
Preferred Stock |
|
5.1(b)(i) |
Prospective RIA Subsidiary |
|
6.19(d) |
Proxy Statement |
|
6.3(a) |
Term |
|
Section |
QPAM Exemption |
|
5.1(x)(ii) |
Regulation FD |
|
6.18(e) |
Reimbursement Obligations |
|
6.18(b) |
Required Amounts |
|
5.2(f)(v) |
RIA Associated Person |
|
5.1(y)(v) |
Schedule 13e-3 |
|
6.3(b) |
Security Incident |
|
5.1(q)(iii) |
SEC |
|
5.1 |
SEC Clearance Date |
|
6.3(c) |
Securities Act |
|
5.1(d)(i) |
Service Provider |
|
5.1(i)(i) |
Similar Law |
|
5.1(x)(i) |
Special Committee |
|
Recitals |
Specified Acquisition |
|
6.1(d) |
State BD Approvals |
|
6.19(f) |
Support Agreement |
|
Recitals |
Surviving Corporation |
|
1.2(a) |
Surviving LLC |
|
1.2(a) |
Tail Period |
|
6.11(c) |
Topco |
|
6.24 |
Takeover Law |
|
5.1(m) |
Trade Controls |
|
5.1(j)(iii) |
Transfer Taxes |
|
9.11 |
TRA Holder Agreements |
|
Recitals |
Unaffiliated Stockholders |
|
Recitals |
Vested Units Exchanges |
|
1.1(a) |
WARN Act |
|
5.1(p)(ii) |
Written Consent Client |
|
6.19(a) |
|
|
|
Exhibit
A
Form of Support Agreement
SUPPORT AGREEMENT
This
Support Agreement (this “Agreement”), dated as of February [_], 2023, is entered into by and among the undersigned
stockholders of the Company (the “Stockholders”), Ferdinand FFP Ultimate Holdings, LP, a Delaware limited partnership
(“Topco Aggregator”), Ferdinand FFP Parent, Inc., a Delaware corporation and a direct, wholly owned subsidiary
of Topco Aggregator (“Topco” and, together with Topco Aggregator, the “Topco Parties”), Focus Financial
Partners Inc., a Delaware corporation (the “Company”), and Ferdinand FFP Acquisition, LLC, a Delaware limited liability
company and an indirect, wholly owned subsidiary of Topco (“Parent”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) the Company, (ii) Focus Financial Partners, LLC, a Delaware
limited liability company (“Focus LLC”), (iii) Parent, (iv) Ferdinand FFP Merger Sub 1, Inc., a Delaware
corporation and a direct, wholly owned Subsidiary of Parent (“Company Merger Sub”), and (v) Ferdinand FFP Merger
Sub 2, LLC, a Delaware limited liability company and a direct, wholly owned Subsidiary of Parent (“LLC Merger Sub”),
will enter into an Agreement and Plan of Merger (as may be amended from time to time, the “Merger Agreement”),
which provides for, among other things, the merger of Company Merger Sub with and into the Company (the “Company Merger”)
with the Company surviving the Company Merger as a wholly owned subsidiary of Parent;
WHEREAS,
as of the date hereof, each of the Stockholders is the record or “beneficial owner” (within the meaning of Rule 13d-3
under the Exchange Act) of (i) the number of shares of Class A Common Stock, par value $0.01 per share, of the Company (the
“Class A Common Stock”) set forth opposite such Stockholder’s name on Exhibit A hereto under
the heading “Class A Owned Shares”, collectively being all of the shares of Class A Common Stock owned of record
or beneficially by the Stockholders as of the date hereof (the “Class A Owned Shares”), (ii) the
number of shares of Class B Common Stock, par value $0.01 per share, of the Company (the “Class B Common Stock”
and the Class A Common Stock and Class B Common Stock, collectively, the “Common Stock”) set forth opposite
such Stockholder’s name on Exhibit A hereto under the heading “Class B Owned Shares”, collectively
being all of the shares of Class B Common Stock owned of record or beneficially by the Stockholders as of the date hereof (the “Class B
Owned Shares” and together with the Class A Owned Shares, the “Owned Shares”) and (iii) the number
of Focus LLC Units set forth opposite such Stockholder’s name on Exhibit A hereto under the heading “Owned Units”,
collectively being all of the equity of Focus LLC owned of record or beneficially by the Stockholders as of the date hereof (the “Owned
Units”);
WHEREAS, in connection with
the Closing, each of the Stockholders will contribute and transfer the number of Class A Owned Shares set forth opposite such Stockholder’s
name on Exhibit B hereto under the heading “Class A Rollover Shares”, as adjusted in accordance with Section 2.1
(such shares, the “Class A Rollover Shares”), which Class A Rollover Shares otherwise would be converted
into the right to receive the Merger Consideration in cash (the aggregate amount of the Merger Consideration that would have been payable
in respect of the Class A Rollover Shares but for the transactions contemplated by this Agreement and their classification as Excluded
Shares as a result of the transactions contemplated hereby, the “Class A Rollover Amount”) to Topco, which indirectly
owns 100% of the equity interests of Parent, on the Closing Date and immediately prior to the Vested Units Exchanges and the LLC Merger
Effective Time (the “Rollover Time”), in exchange for a number of newly issued shares of Topco with an aggregate value
equal to the Class A Rollover Amount (the “Exchanged Class A Shares”);
WHEREAS, in connection with
the Closing, each of the Stockholders will contribute and transfer the number of Owned Units and corresponding Class B Owned Shares
set forth opposite such Stockholder’s name on Exhibit B hereto under the heading “Rollover Units”, as adjusted
in accordance with Section 2.1 (such paired units and shares, the “Rollover Units” and together with the
Class A Rollover Shares, the “Rollover Equity”), which Rollover Units otherwise would be exchanged into shares
of Class A Common Stock and converted into the right to receive the Merger Consideration in cash but for the transactions contemplated
by this Agreement and their exclusion from the Vested Units Exchanges pursuant to Section 1.1 of the Merger Agreement (the aggregate
amount of the Merger Consideration that would have been payable in respect of the Rollover Units if such Rollover Units were exchanged
for shares of Class A Common Stock pursuant to Section 1.1 of the Merger Agreement, the “Unit Rollover Amount”,
and collectively with the Class A Rollover Amount, the “Rollover Amount”) to Topco at the Rollover Time, in exchange
for a number of newly issued shares of Topco with an aggregate value equal to the Unit Rollover Amount (the “Exchanged Unit Shares”,
together with the Exchanged Class A Shares, the “Exchanged Shares”) (the contribution of the Rollover Equity by
the Stockholders to Topco, the “Topco Rollover”);
WHEREAS, immediately following
the Topco Rollover, each of the Stockholders will contribute and transfer the Exchanged Shares to Topco Aggregator, in exchange for a
number of newly issued units of Topco Aggregator (the “Topco Aggregator Units”) with an aggregate value (based on the
same per unit price paid by Clayton, Dubilier & Rice Fund XII, L.P. (or its affiliates) (collectively, the “Sponsor”)
for the units issued to the Sponsor by Topco Aggregator at the Closing (the “Sponsor Units”)) equal to the Rollover
Amount (the contribution of the Exchanged Shares by the Stockholders to Topco Aggregator, the “Topco Aggregator Rollover”);
and
WHEREAS, as a condition and
inducement to Parent’s willingness to enter into the Merger Agreement and concurrently with the execution and delivery of the Merger
Agreement, Parent has required that each of the Stockholders, and the Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Stockholders,
the Company, Parent, Topco and Topco Aggregator hereby agree as follows:
1. Agreement
to Vote the Covered Shares.
1.1 Beginning
on the date hereof until the Termination Date (as defined below), at every meeting of the Company’s stockholders, including any
postponement, recess or adjournment thereof, or in any other circumstance, in each case, upon which a vote, consent or other approval
(including a written consent) with respect to the Merger Agreement, the Mergers or any other transaction contemplated by the Merger Agreement
is sought each Stockholder agrees to, and if applicable, to cause its controlled Affiliates to, affirmatively vote (including via proxy)
or execute consents with respect to (or cause to be voted (including via proxy) or consents to be executed with respect to) all of the
Owned Shares and any additional shares of Common Stock or other voting securities of the Company acquired by such Stockholder or its controlled
Affiliates after the date hereof and prior to the Termination Date (collectively, and together with the Owned Shares, the “Covered
Shares”) as follows: (a) in favor of (i) the adoption of the Merger Agreement and the approval of the Mergers, (ii) the
approval of any proposal to adjourn or postpone any Company Stockholders Meeting if the Company or Parent proposes or requests such postponement
or adjournment in accordance with Section 6.4 of the Merger Agreement, and (iii) the approval of any other proposal considered
and voted upon by the stockholders of the Company at any Company Stockholders Meeting necessary or desirable for the consummation of the
Mergers and the transactions contemplated by the Merger Agreement, and (b) against (i) any proposal, action or agreement that
would reasonably be expected to result in a breach of any covenant, representation or warranty or other obligation or agreement of the
Company contained in the Merger Agreement or that would reasonably be expected to result in any condition set forth in Sections 7.1 or
7.2 of the Merger Agreement not being satisfied or not being fulfilled prior to the Termination Date, (ii) any Acquisition Proposal,
(iii) any reorganization, dissolution, liquidation, winding up or similar extraordinary transaction involving the Company (except
as contemplated by the Merger Agreement) and (iv) any other action, agreement or proposal which would reasonably be expected to prevent,
materially impede or materially delay the consummation of the Mergers or any of the transactions contemplated by the Merger Agreement
(clauses (a) and (b) collectively, the “Supported Matters”). Each Stockholder agrees to, and agrees to cause
its applicable controlled Affiliates to, be present, in person or by proxy, at every meeting of the Company’s stockholders, including
any postponement, recess or adjournment thereof, or in any other circumstance, however called, to vote on the Supported Matters (in the
manner described in this Section 1.1) so that all of the Covered Shares will be counted for purposes of determining the presence
of a quorum at such meeting, or otherwise cause the Covered Shares to be counted as present thereat for purposes of establishing a quorum.
For the avoidance of doubt, other than with respect to the Supported Matters, each Stockholder does not have any obligation to vote the
Covered Shares in any particular manner and, with respect to such other matters (other than the Supported Matters), such Stockholder shall
be entitled to vote the Covered Shares in its sole discretion.
2. Rollover.
2.1 Contribution
and Rollover. On the terms set forth herein and subject to Section 2.2 and Section 2.3:
(a) Each
Stockholder agrees and covenants to Parent, Topco and Topco Aggregator that it will, (i) at the Rollover Time, contribute, assign,
transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed and delivered) to Topco such Stockholder’s
Rollover Equity in exchange for the issuance by Topco of such Stockholder’s Exchanged Shares to such Stockholder and (ii) immediately
following the Topco Rollover, contribute, assign, transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed
and delivered) to Topco Aggregator such Stockholder’s Exchanged Shares in exchange for the issuance by Topco Aggregator of the Topco
Aggregator Units to such Stockholder, in each case, free and clear of any and all Liens (including any restriction on the right to vote,
sell or otherwise dispose of such Rollover Equity or such Exchanged Shares, as applicable), except as may exist by reason of this Agreement,
the Merger Agreement and applicable securities laws (the “Rollover”).
(b) Notwithstanding
anything to the contrary set forth in this Agreement, to the extent approved in writing by Clayton, Dubilier & Rice, LLC (“CD&R”)
(such approval not to be unreasonably withheld, conditioned or delayed), if any Affiliate of a Stockholder irrevocably commits after the
date hereof, on terms reasonably acceptable to CD&R, to invest an amount of cash in Parent (a “Stockholder Affiliate Commitment”),
(i) the Rollover Amount shall be automatically reduced, without any further action of the parties hereto, on a dollar-for-dollar
basis by the aggregate amount of such Stockholder Affiliate Commitment actually funded, and the Class A Rollover Amount and the Unit
Rollover Amount shall be proportionately reduced by such Stockholder Affiliate Commitment actually funded based on the Class A Rollover
Share Percentage and the Rollover Unit Percentage, respectively, (ii) the number of Class A Rollover Shares shall be reduced
by the quotient of (A) the product of the Class A Rollover Share Percentage and the amount of such Stockholder Affiliate Commitment
actually funded and (B) the Merger Consideration and (iii) the number of Rollover Units shall be reduced by such number of Focus
LLC Units that are exchangeable into such number of shares of Class A Common Stock equal to the quotient of (A) the product
of the Rollover Unit Percentage and the amount of such Stockholder Affiliate Commitment actually funded and (B) the Merger Consideration.
The “Class A Rollover Share Percentage” means a fraction, expressed as a percentage, the numerator of which is
the number of Class A Rollover Shares (determined without giving effect to this Section 2.1(b)) and the denominator of
which is the total number of equity interests representing the Rollover Equity (determined without giving effect to this Section 2.1(b)),
with Owned Units and corresponding Class B Owned Shares counting as a single equity interest for purposes of calculating Rollover
Equity. The “Rollover Unit Percentage” means a fraction, expressed as a percentage, the numerator of which is
the number of Rollover Units (determined without giving effect to this Section 2.1(b)) and the denominator of which is the
total number of equity interests representing the Rollover Equity (determined without giving effect to this Section 2.1(b)),
with Owned Units and corresponding Class B Owned Shares counting as a single equity interest for purposes of calculating Rollover
Equity.
(c) Each
Stockholder acknowledges and agrees that, from and after the Rollover, except as set forth in Section 2.3, such Stockholder
shall have no right, title or interest in or to the Rollover Equity.
2.2 Conditions
to Rollover. The obligations of each Stockholder to consummate the Rollover is subject to the satisfaction (or waiver by such Stockholder
in writing) of the following conditions:
(a) (i) The
satisfaction, or written waiver by Parent (to the extent permitted by the Merger Agreement), of all conditions to the obligations of Parent
and Merger Subs to consummate the Mergers and the transactions contemplated by the Merger Agreement that are to occur on the Closing Date
as set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or written waiver by Parent (to the extent permitted by the Merger Agreement) of such conditions),
(ii) the satisfaction, or written waiver by the Company (to the extent permitted by the Merger Agreement), of all conditions to the
obligations of the Company to consummate the Mergers and the transactions contemplated by the Merger Agreement that are to occur on the
Closing Date as set forth in Sections 7.1 and 7.3 of the Merger Agreement (other than those conditions that by their terms are to be satisfied
at the Closing, but subject to the satisfaction or written waiver by the Company (to the extent permitted by the Merger Agreement) of
such conditions), (iii) the substantially concurrent funding of the Equity Financing on the terms and subject to the conditions set
forth in the Equity Commitment Letters and (iv) the consummation of the Mergers immediately following the Rollover; and
(b) No
Law enacted, entered, promulgated, enforced or issued by any Governmental Authority shall be in effect preventing the consummation of,
or otherwise making illegal, the Rollover.
2.3 Failure
to Consummate the Mergers. In the event that after the Rollover, the Mergers fails to be consummated for any reason whatsoever and
the Merger Agreement is terminated, the parties hereto agree that concurrently with the termination of the Merger Agreement, automatically
and without any action of the parties hereto, Topco Aggregator shall assign, transfer, convey and deliver (or shall cause to be assigned,
transferred, conveyed and delivered) to the Stockholders the Rollover Equity and the Stockholders shall assign, transfer, convey and deliver
to Topco Aggregator the Topco Aggregator Units issued to the Stockholders. In such event, each party hereto shall, as promptly as practicable,
provide all such cooperation as the other parties hereto may reasonably request in order to ensure that the foregoing has occurred and
been made effective.
2.4 Tax
Treatment. The parties hereto agree that, for U.S. federal (and applicable state and local) income tax purposes, (a) the Topco
Rollover, together with the contributions by Topco Aggregator to Topco in connection with the transactions contemplated by the Merger
Agreement, are intended to constitute a single integrated transaction and be treated as a transaction described in Section 351(a) of
the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations promulgated thereunder and
(b) the Topco Aggregator Rollover is intended to be treated as a transaction described in Section 721(a) of the Code (the
“Intended Tax Treatment”). Each party hereto shall prepare and file (and shall cooperate in the preparation and filing
of, as reasonably requested) all Tax Returns in a manner consistent with the Intended Tax Treatment and shall not take any position inconsistent
with the Intended Tax Treatment in connection with any tax matters, in each case, unless otherwise required pursuant to a final “determination”
within the meaning of Section 1313(a)(1) of the Code. The Topco Parties and the Stockholders shall use their reasonable best
efforts to cause the transactions contemplated by this Agreement to qualify for the Intended Tax Treatment and shall not take any action
(or fail to take any action) that knowingly would, or that knowingly would reasonably be likely to cause the transactions not to so qualify.
2.5 Termination.
Parent shall not be permitted to terminate its obligations under this Section 2 without the written consent of the Stockholders (it
being understood that this Section 2 shall also be terminated automatically, without any further action required by the parties thereto,
upon any termination of this Agreement pursuant to Section 3).
2.6 Tax
Information. Within ninety (90) days following the Closing Date, each Stockholder shall provide to Topco Aggregator or its accountants
the Stockholder’s estimated tax basis and holding period as of the Closing Date in its Rollover Equity and shall promptly provide
updated information in respect thereof if the Stockholder determines that its actual tax basis or holding period is different than previously
reported. At the Rollover Time, each Stockholder shall deliver to the Topco Parties a properly completed and timely executed IRS Form W-8
or W-9.
2.7 Withholding.
Each of Parent, Topco, and Topco Aggregator (and any Affiliates and designees of the foregoing), shall be entitled to deduct or withhold
from any amounts owing from such Persons to any Stockholder (including withholding equity interests in the case of issuances of equity
by such Persons) for any federal, state, local or non-U.S. withholding taxes, excise taxes, or employment taxes imposed with respect to
compensation or other payments to such Stockholder or such Stockholder's ownership interest in Topco Aggregator, Topco, or their Affiliates,
including, without limitation, equity issuances, wages, bonuses, distributions, the receipt or exercise of equity options and/or the receipt
or vesting of restricted equity; provided, that the Person intending to make any such deduction or withholding (other than compensatory
withholding or withholding resulting from the failure of a Stockholder to provide the forms required under Section 2.6) shall
reasonably cooperate with the applicable Stockholder in determining whether any reductions or exemptions from withholding are available,
including providing such Stockholder with a reasonable opportunity to provide such forms, certificates or other evidence to eliminate
or reduce any such required deduction or withholding. To the extent any amounts are so deducted or withheld, such deducted or withheld
amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Stockholder. In the event any such deductions
or withholdings are not made with respect to a Stockholder, such Stockholder shall indemnify Parent, Topco, and Topco Aggregator (and
any Affiliates and designees of the foregoing) for any amounts paid with respect to the applicable taxes, together with any interest,
penalties and related expenses thereto. Each Stockholder shall provide Topco Aggregator with such additional tax-related information,
certifications and documentation as Topco Aggregator may request.
2.8 Additional
Tax Matters. The Topco Parties agree that the Limited Partnership Agreement of Topco Aggregator at the Rollover Time shall include
the following provisions substantially the same and not materially different than the following:
(a) (A) In
the event of an in-kind distribution by Topco Aggregator to some or all of its partners (whether or not in full or partial redemption
of the any partner’s interest in Topco Aggregator), the partner shall receive (or be deemed to receive), to the extent possible,
(and Topco Aggregator shall record on its books and records the distribution as being a distribution of): (x) first, if the in-kind
distribution includes any assets such partner contributed to Topco Aggregator (“Contributed Assets”), such Contributed
Assets shall be distributed to such partner to the extent of any amounts due to such partner in respect of such distribution, and (y) second,
to the extent that no further distribution can be made in accordance with clause (x), or if the in-kind distribution does not include
any Contributed Assets with respect to such partner, then, property shall be distributed to such partner other than Contributed Assets
with respect to any other partner, (B) any future partial disposition by Topco Aggregator of common stock of Topco shall be structured,
to the extent possible such that the items of income, gain, loss or deduction resulting from such disposition are allocated (taking into
account any allocations required pursuant to Section 704(c) of the Code) to the partners to whom the proceeds are intended to
be distributed, as determined by the General Partner in good faith and (C) in the event that after the Closing Date there shall be
additional capital contributions of property or cash into Topco Aggregator and to the extent such property or cash is further contributed
to Topco (or any successor thereof), such contribution to Topco shall only be made in exchange for newly issued shares of common stock
of Topco, on a value for value basis, governed by Section 351 of the Code (i.e., not as a paid-in capital). For purposes of the provisions
set forth in this Section 2.7(a), (i) a Stockholder shall include a successor in interest that is considered to have contributed
assets (other than cash or cash equivalents) to Topco Aggregator under Sections 1.704-3(a)(7) and 1.737-1(c)(2)(iii) of the
Treasury Regulations, and (ii) any Contributed Assets shall include assets that are treated as substituted basis property under Sections
1.704-3(a)(8)(i) and 1.737-2(d)(3)(i) of the Treasury Regulations as a result of having been received by Topco Aggregator in
respect of Contributed Assets in an exchange or series of exchanges in which no gain or loss was recognized as provided in Sections 1.704-3(a)(8)(i) and
1.737-2(d)(3)(i) of the Treasury Regulation, including for these purposes, but not limited to, shares of Topco issued on account
of Topco Rollover pursuant to this Agreement (“Substituted Basis Property”). With respect to any Contributed Assets
(or Substituted Basis Property), Topco Aggregator shall use reasonable efforts to separately identify such property in order to give effect
to this Section 2.7(a), to the extent reasonably practicable. This Section 2.7(a) is intended to minimize the potential
application of Sections 704(c)(1)(B) and 737 of the Code with respect to each partner and shall be interpreted consistently with
that intention.
(b) Topco
Aggregator shall use reasonable best efforts to provide reasonably prompt written notice to the Stockholders if Topco Aggregator obtains
actual knowledge that Topco becomes or is likely to become a U.S. real property holding corporation.
3. Termination.
This Agreement shall terminate automatically and without further action upon the earliest to occur of: (i) the valid termination
of the Merger Agreement in accordance with its terms, (ii) the Company Merger Effective Time (following the consummation of the Rollover),
(iii) any amendment of the Merger Agreement, without the prior written consent of the Stockholders, that reduces the amount of the
Merger Consideration or changes the form of the Merger Consideration (such amendment, an “Adverse Amendment”) or (iv) the
written consent of the Stockholders, Parent and the Company (such date, the “Termination Date”); provided that
the provisions set forth in Sections 2.3, and 12 through 26 shall survive the termination of this Agreement; provided,
further, that Sections 2.4, 2.6 and 2.7 shall survive the termination of this Agreement pursuant to the foregoing
clause (ii); provided, further, that Section 4.5 and the provisions and obligations incorporated by reference
in Section 4.5 shall survive to the extent that, and only for so long as, the corresponding provisions referenced therein
survive under the terms of the Interim Investors Agreement; and provided further that the termination of this Agreement shall not
prevent any party hereto from seeking any remedies (at law or in equity) against (x) any other party hereto for that party’s
Willful Breach of this Agreement that may have occurred on or before such termination or (y) against any of the Stockholders for
such Stockholder’s material breach of Sections 2.1(a), 4.3(b) and 4.5 (including, for the avoidance of
doubt, any material breach of any of the provisions of the Interim Investors Agreement incorporated by reference in Section 4.5)
(any material breach contemplated by this clause (y), a “Material Rollover Breach”). For the purpose hereof, “Willful
Breach” means a material breach of this Agreement (other than a Material Rollover Breach) that is a consequence of a willful
or deliberate act or failure to act by a Party that knows or would reasonably be expected to have known that the taking of such act or
failure to act would, or would reasonably be expected to, cause a breach of this Agreement.
4. Certain
Covenants.
4.1 Acquisition
Proposals.
(a) From
and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Company
Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct and
use its reasonable best efforts to cause its Representatives not to, directly or indirectly:
(1) initiate,
solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes,
or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage
in, continue or otherwise participate in any discussions or negotiations regarding, or provide any nonpublic information or data to any
Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an
Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish
to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries
or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel,
of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the
making, submission or announcement of, an Acquisition Proposal;
(4) approve,
endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; or
(5) resolve
or agree to do any of the foregoing.
(b) Notwithstanding
anything to the contrary in Section 4.1(a):
(1) From
the date hereof until the No-Shop Period Start Date (or with respect to an Excluded Party, the Cut-Off Time), the Stockholders may, at
the Company’s request and with substantially concurrent written notice to Parent (which notice shall include the identity of the
Third Person referenced in this Section 4.1(b)(1)), engage in discussions with a Third Person who has submitted an Acquisition Proposal
solely for the purpose of confirming that the Stockholders are willing to enter into an agreement to vote in favor of such Acquisition
Proposal if the Company Board (acting on the recommendation of the Special Committee) or the Special Committee, as applicable, were to
subsequently determine that such Acquisition Proposal constitutes a Superior Proposal in accordance with Section 6.2 of the Merger
Agreement.
(2) The
Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written
Acquisition Proposal that the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee has determined
in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes
a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure to
take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From
the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Effective Time,
subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly (and,
in any event, within twenty-four hours) notify Parent in writing following any discussions or negotiations with any Person or Group pursuant
to Section 4.1(b) and shall provide, in connection with such notice, the material terms and conditions of any proposal, indication
of interest (including, for the avoidance of doubt, the form and amount of consideration and proposed financing arrangements), or offer
(including the identity of the Person or Group making such proposal, indication of interest or offer and, if applicable, copies of any
written proposal, indication of interest or offer, including proposed agreements or commitment letters) that is the subject of such discussions
or negotiations, and thereafter shall keep Parent informed, on a reasonably prompt basis (and, in any event, within twenty-four hours),
of any material changes to the status and terms of any such proposal, indication of interest or offer (including any amendments thereto)
and any material changes to the status and terms of any such proposal, indication of interest or offer. Notwithstanding the foregoing,
the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has notified Parent
thereof.
4.2 Transfers.
Beginning on the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly contemplated
pursuant to this Agreement, such Stockholder shall not, and shall direct its controlled Affiliates not to, directly or indirectly (i) tender
any Covered Shares into any tender or exchange offer, (ii) offer, sell, transfer, assign, exchange, pledge, hypothecate, encumber,
or otherwise dispose of (collectively, “Transfer”) or enter into any contract, option, agreement, understanding or
other arrangement with respect to the Transfer of, any Covered Shares or beneficial ownership, voting power or any other interest thereof
or therein (including by operation of law), (iii) grant any proxies or powers of attorney, deposit any Covered Shares into a voting
trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Agreement, (iv) enter into
any hedge, swap or other transaction or Contract which is designed to (or is reasonably expected to lead to or result in) a transfer of
the economic consequences of ownership of any Covered Shares, whether any such transaction is to be settled by delivery of Covered Shares,
in cash or otherwise, (v) take an action that would reasonably be expected to prevent or materially impair or materially delay the
consummation of the transactions contemplated by this Agreement or the Merger Agreement or (vi) commit or agree to take any of the
foregoing actions. Any Transfer in violation of this Section 4.2 shall be void ab initio. Notwithstanding anything
to the contrary in this Agreement, but subject to Section 2.1(b), each Stockholder may Transfer any or all of the Covered
Shares from and after the Requisite Company Stockholder Approvals have been obtained; provided that the Stockholders retain, collectively,
such number of Owned Shares and Owned Units that collectively have an aggregate value equal to the Rollover Amount, as determined in accordance
with Section 2.
4.3 Focus
LLC Contribution.
(a) Pursuant
to Section 6.23 of the Merger Agreement, the Company, in its capacity as Managing Member (as such term is defined in the Focus LLC
Agreement) of Focus LLC, has agreed to consent to any Transfer (as such term is defined in the Focus LLC Agreement) of the Rollover Units
as contemplated by this Agreement.
(b) Each
Stockholder hereby covenants and agrees to take or cause to be taken all other or further actions required (including under the Focus
LLC Agreement) to validly contribute, assign, transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed
and delivered) to Topco the Rollover Units at the Rollover Time, free and clear of any and all Liens (including any restriction on the
right to vote, sell or otherwise dispose of the Rollover Units), except as may exist by reason of this Agreement, the Merger Agreement
and applicable securities laws. Each Stockholder hereby acknowledges and agrees that to the extent any Rollover Units are exchanged for
shares of Class A Common Stock following the date hereof pursuant to the Focus LLC Agreement, such shares of Class A Common
Stock received pursuant to such exchange shall be treated as Covered Shares and Class A Rollover Shares.
4.4 Termination
of Nomination Agreement. At or prior to the Closing, subject to and conditioned upon the Closing, the Stockholders shall deliver a
termination notice to the Company pursuant to Section 4.2 of that certain Nomination Agreement (as may be amended, supplemented or
otherwise modified in accordance with its terms), dated as of July 30, 2018, by and between the Stockholders and the Company.
4.5 Certain
Agreements. The Stockholders agree to be bound by, subject to the exceptions and limitations set forth therein, the following provisions
of the Interim Investors Agreement, dated as of the date hereof (the “Interim Investors Agreement”), by and among Topco
Aggregator, Topco, Parent and the other parties appearing on the signature pages thereto, as set forth in this Section 4.5:
(a) Section 2.4, mutatis mutandis, as if the Stockholders were Investors (as defined in the Interim Investors Agreement)
and Requisite Investors (as defined in the Interim Investors Agreement) thereunder; (b) Section 2.11, mutatis mutandis,
as if the Stockholders were Sponsor Investors (as defined in the Interim Investors Agreement); (c) Section 2.11(a)(ii) and
Section 2.11(c), mutatis mutandis, as if the Stockholders were Investors thereunder; (d) the last sentence of Section 4.9,
mutatis mutandis, as if the Stockholders were Investors thereunder; (e) Section 4.10, mutatis mutandis, as if
the Stockholders were parties thereunder; provided that such provisions shall not apply to any information received, supplied or
otherwise available to such Stockholders unrelated to the Merger and the transactions contemplated by the Merger Agreement; (f) Section 4.11,
mutatis mutandis, as if the Stockholders were parties thereunder; provided that such provisions shall not apply (other than
the proviso to the first sentence in Section 4.11, which shall continue to apply, mutatis mutandis) to the information required
to be included in the Stockholder's disclosure statements on Schedule 13D or amendments or supplements thereto; and (g) Section 4.12,
mutatis mutandis, as if the Stockholders were parties thereunder. To the extent any Stockholder commits any Material Rollover Breach
which continues uncured for twenty-four (24) hours following notice thereof by Parent to such Stockholder, such Stockholder agrees to
be bound by, subject to the exceptions and limitations set forth therein, Section 2.12(b) and Section 4.4 of the Interim
Investors Agreement, mutatis mutandis, as if such Stockholder were a “Failing Investor” thereunder. Notwithstanding
anything to the contrary set forth in this Agreement or the Interim Investors Agreement, in the event of any Material Rollover Breach
or any Breach (as defined in the Interim Investors Agreement), in no event shall the aggregate liability of the Stockholders hereunder
and SPC (as defined in the Interim Investors Agreement), in the aggregate, exceed an amount equal to the Maximum Liability Cap (as defined
in the Interim Investors Agreement).
5. Proxy
Statement; Schedule 13e-3 and Schedule 13D.
(a) The
Company, Parent and the Stockholders shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly
prepare and file with the SEC the Schedule 13e-3. Each Stockholder will provide information reasonably requested by the Company or Parent
in connection with the preparation of the Schedule 13e-3. To the knowledge of each Stockholder, the information supplied by such Stockholder
for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13e-3 or any other filing Parent or the Company is required
to make in connection with the Mergers will not, at the time that such information is provided, 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 misleading. Promptly after the execution of this Agreement, Parent and the Stockholders
shall cooperate to prepare and file with the SEC one or more disclosure statements on Schedule 13D or amendments or supplements thereto,
as applicable (such disclosure statements, including any amendments or supplements thereto, the “Schedule 13Ds”) relating
to the Merger Agreement and this Agreement and the transactions contemplated hereby and thereby. Parent shall (i) provide the Stockholders
and Stockholders’ counsel a reasonable opportunity to review drafts of the Schedule 13e-3 prior to filing the Schedule 13e-3 with
the SEC and (ii) consider in good faith all comments thereto reasonably proposed by the Stockholders, their outside counsel and other
Representatives. To the extent legally permissible, Parent and the Stockholders shall (A) provide each other and their respective
counsel a reasonable opportunity to review drafts of the Schedule 13Ds prior to filing the Schedule 13Ds with the SEC and (B) consider
in good faith all comments thereto reasonably proposed by the other parties their outside counsel and their other Representatives, it
being understood that failure to provide such prior review or to incorporate any comments shall not in any way limit or preclude Parent
or the Stockholders, as applicable, from amending any such Schedule 13D.
(b) Parent,
Sponsor and the Stockholders will each use its reasonable best efforts to furnish all information concerning such Party and its controlled
Affiliates to the other parties that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13e-3,
and provide such other assistance, as may be reasonably requested by such other Party to be included therein and will otherwise reasonably
assist and cooperate with the other in the preparation, filing and distribution of the Proxy Statement and the Schedule 13e-3 and the
resolution of any comments to either received from the SEC.
6. Representations
and Warranties of the Stockholder. Each Stockholder hereby represents and warrants to Parent and the Company as follows:
6.1 Due
Authority. Such Stockholder is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction
of formation. Such Stockholder has all requisite corporate or other similar power and authority and has taken all corporate or other similar
action necessary (including approval by the board of directors or applicable corporate bodies) to execute, deliver, comply with and perform
its obligations under this Agreement in accordance with the terms hereof and to consummate the transactions contemplated hereby, and no
other action on the part of or vote of holders of any equity securities of such Stockholder is necessary to authorize the execution and
delivery of, compliance with and performance by such Stockholder of this Agreement. This Agreement has been duly executed and delivered
by such Stockholder and, assuming the due execution and delivery of this Agreement by the Company, Parent, Topco and Topco Aggregator,
constitutes a legal, valid and binding agreement of such Stockholder enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting
or relating to creditors’ rights generally.
6.2 No
Conflict. The execution and delivery of, compliance with and performance of this Agreement by such Stockholder including, for the
avoidance of doubt, the contribution to Topco of the Rollover Units, do not and will not (i) conflict with or result in any violation
or breach of any provision of the certificate of formation or operating agreement or similar organizational documents of such Stockholder,
(ii) conflict with or result in any violation or breach of any provision of the Focus LLC Agreement, (iii) conflict with or
result in a violation or breach of any applicable Law, (iv) require any consent by any Person under, constitute a default, or an
event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation
or acceleration of any right or obligation or the loss of any benefit to which such Stockholder is entitled, under any Contract binding
upon such Stockholder, or to which any of its properties, rights or other assets are subject or (v) result in the creation of a Lien
(other than Permitted Liens) on any of the properties or assets (including intangible assets) of such Stockholder, except in the case
of clauses (i), (ii), (iii), (iv) and (v) above, any such violation, breach, conflict, default, termination, acceleration, cancellation
or loss that would not, individually or in the aggregate, reasonably be expected to restrict in any material respect, prohibit or impair
in any material respect the consummation of the Mergers or the performance by such Stockholder of its obligations under this Agreement.
6.3 Consents.
No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other
Person, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the consummation
by the Stockholder of the transactions contemplated hereby, except (a) as required by the rules and regulations promulgated
under the Exchange Act, the Securities Act, or state securities, takeover and “blue sky” laws, (b) compliance with any
applicable requirements of the HSR Act and any applicable foreign Antitrust Laws, (c) the applicable rules and regulations of
the SEC or any applicable stock exchange or (d) as would not, individually or in the aggregate, reasonably be expected to restrict
in any material respect, prohibit, impair in any material respect or materially delay the consummation of the Mergers or the performance
by such Stockholder of its obligations under this Agreement.
6.4 Ownership
of the Owned Shares and Owned Units. Such Stockholder is, as of the date hereof, the record and beneficial owner of the Owned Shares
and the Owned Units, all of which are free and clear of any Liens, other than those created by this Agreement, the Merger Agreement, the
Focus LLC Agreement or arising under applicable securities laws. Such Stockholder has the full legal right, power and authority to deliver
the Rollover Equity to Parent pursuant to Section 2. Such Stockholder does not own, of record or beneficially, any shares of capital
stock of the Company, or other rights to acquire shares of capital stock of the Company, in each case other than the Owned Shares and
Owned Units. Such Stockholder has the sole right to dispose of the Owned Shares and Owned Units, and none of the Owned Shares or Owned
Units is subject to any pledge, disposition, transfer or other agreement, arrangement or restriction, except as contemplated by this Agreement.
As of the date hereof, such Stockholder has not entered into any agreement to Transfer any Owned Shares or Owned Units and no person has
a right to acquire any of the Owned Shares or Owned Units held by such Stockholder.
6.5 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of the Stockholder, threatened
against the Stockholder that would reasonably be expected to prevent, materially or materially impair the ability of the Stockholder to
perform its obligations under this Agreement.
6.6 Investment.
The Exchanged Shares and the TopCo Aggregator Units to be acquired by the Stockholder pursuant to this Agreement will be acquired for
the Stockholder’s own account and not with a view to, or intention of, distribution thereof in violation of any applicable state
securities laws. Each Stockholder is an “accredited investor” within the meaning of Rule 501 of Regulation D of the SEC.
Each Stockholder is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Exchanged
Shares and the TopCo Aggregator Units. Each Stockholder is able to bear the economic risk of its investment in the Exchanged Shares and
the TopCo Aggregator Units for an indefinite period of time because the Exchanged Shares and the TopCo Aggregator Units have not been
registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption
from such registration is available. Each Stockholder has had an opportunity to ask questions and receive answers concerning the terms
and conditions of the offering of the Exchanged Shares and the TopCo Aggregator Units and has had access to such other information concerning
Parent as such Stockholder has requested.
6.7 Finders
Fees. No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s
or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
7. Representations
and Warranties of Parent. Parent hereby represents and warrants to the Stockholders as follows:
7.1 Due
Authority. Parent is a legal entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of
formation. Parent has all requisite corporate power and authority and has taken all corporate action necessary (including approval by
the board of directors or applicable corporate bodies) to execute, deliver and perform its obligations under this Agreement in accordance
with the terms hereof and no other corporate action by Parent or vote of holders of any class of the capital stock of Parent is necessary
to approve and adopt this Agreement. This Agreement has been duly executed and delivered by Parent and, assuming the due execution and
delivery of this Agreement by all of the other parties hereto, constitutes a valid and binding agreement of Parent enforceable against
Parent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar Laws affecting or relating to creditors’ rights generally.
7.2 No
Conflict. The execution, delivery and performance by Parent of this Agreement do not and will not, other than as provided in the Merger
Agreement with respect to the Mergers and the other transactions contemplated thereby, (i) conflict with or result in any violation
or breach of any provision of the certificate of incorporation or bylaws of Parent or the similar organizational documents of any of its
Subsidiaries, (ii) conflict with or result in a violation or breach of any applicable Law, (iii) require any consent by any
Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under,
or cause or permit the termination, cancellation or acceleration of any right or obligation or the loss of any benefit to which Parent
and any of its Subsidiaries are entitled, under any Contract binding upon Parent or any of its Subsidiaries, or to which any of their
respective properties, rights or other assets are subject or (iv) result in the creation of a Lien (other than Permitted Liens) on
any of the properties or assets (including intangible assets) of Parent or any of its Subsidiaries, except in the case of clauses (ii),
(iii) and (iv) above, any such violation, breach, conflict, default, termination, acceleration, cancellation or loss that would
not reasonably be expected to restrict, prohibit or impair the performance by Parent of its obligations under this Agreement.
7.3 Consents.
No consent, approval, order or authorization of, or registration, declaration or, (except as required by the rules and regulations
promulgated under the Exchange Act, the Securities Act, or state securities, takeover and “blue sky” laws) filing with, any
Governmental Authority or any other Person, is required by or with respect to Parent in connection with the execution and delivery of
this Agreement or the consummation by Parent of the transactions contemplated hereby, except as would not, individually or in the aggregate,
reasonably be expected to restrict, prohibit, impair or delay the consummation of the Mergers or the performance by Parent of its obligations
under this Agreement.
7.4 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of Parent, threatened against
or affecting Parent that would reasonably be expected to prevent, materially delay or materially impair the ability of Parent to perform
its obligations under this Agreement.
7.5 Exchanged
Shares. The Exchanged Shares and the Topco Aggregator Units, when issued to the Stockholder pursuant to the Rollover, will be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and issued free and clear of any Liens, other than those created
by governance documents of Topco or Topco Aggregator, as applicable, or arising under applicable securities Laws.
8. Representations
and Warranties of the Company. The Company hereby represents and warrants to the Stockholders and Parent as follows:
8.1 Due
Authority. The Company is a legal entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction
of formation. The Company has all requisite corporate power and authority and has taken all corporate action necessary (including approval
by the Company Board (acting on the recommendation of the Special Committee)) to execute, deliver and perform its obligations under this
Agreement in accordance with the terms hereof and no other corporate action by the Company or vote of holders of any class of the capital
stock of the Company is necessary to approve and adopt this Agreement. This Agreement has been duly executed and delivered by the Company
and, assuming the due execution and delivery of this Agreement by all of the other parties hereto, constitutes a valid and binding agreement
of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally.
8.2 No
Conflict. The execution, delivery and performance by the Company of this Agreement do not and will not, other than as provided in
the Merger Agreement with respect to the Mergers and the other transactions contemplated thereby, (i) conflict with or result in
any violation or breach of any provision of the certificate of incorporation or bylaws of the Company or the similar organizational documents
of any of its Subsidiaries, (ii) conflict with or result in a violation or breach of any applicable Law, (iii) require any consent
by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default
under, or cause or permit the termination, cancellation or acceleration of any right or obligation or the loss of any benefit to which
the Company and any of its Subsidiaries are entitled, under any Contract binding upon the Company or any of its Subsidiaries, or to which
any of their respective properties, rights or other assets are subject or (iv) result in the creation of a Lien (other than Permitted
Liens) on any of the properties or assets (including intangible assets) of the Company or any of its Subsidiaries, except in the case
of clauses (ii), (iii) and (iv) above, any such violation, breach, conflict, default, termination, acceleration, cancellation
or loss that would not reasonably be expected to restrict, prohibit or impair the performance by the Company of its obligations under
this Agreement.
9. Stockholder
Capacity. This Agreement is being entered into by the Stockholders solely in their respective capacity as a record or beneficial owner
of the Owned Shares and Owned Units, and nothing in this Agreement shall restrict or limit the ability of any of the Stockholders or any
of their respective Affiliates or Representatives who is a director or officer of the Company or any of the Company’s Subsidiaries
to take, or refrain from taking, any action in his or her capacity as a director or officer of the Company or any of its Subsidiaries,
including the exercise of fiduciary duties to the Company or its stockholders, and any such action taken in such capacity or any such
inaction shall not constitute a breach of this Agreement, and the provisions of this Agreement shall not apply to such directors or officers
in their capacity as such.
10. Non-Survival
of Representations, Warranties and Covenants. Other than the covenants and agreements in Section 2.4, Section 2.6, Section 2.7,
Section 3, Section 11, Sections 13 through 28 and, solely to the extent and only for so long as the provisions and obligations
incorporated by reference in Section 4.5 survive under the terms of the Interim Investors Agreement, Section 4.5 (and
such applicable provisions incorporated by reference therein), in each case, which shall survive the Company Merger Effective Time, the
representations, warranties and covenants contained herein shall not survive the Company Merger Effective Time.
11. Waiver
of Appraisal and Dissenter Rights and Certain Other Actions. The Stockholder hereby irrevocably and unconditionally waives, to the
fullest extent of the Law, and agrees to cause to be waived and not to assert any appraisal rights, any dissenter’s rights and any
similar rights under Section 262 of the DGCL or otherwise with respect to the Owned Shares or Owned Units with respect to the Mergers
and the transactions contemplated by the Merger Agreement.
12. Certain
Adjustments. In the event of a stock split, stock dividend or distribution, or any change in
the Common Stock and Focus LLC Units by reason of any split-up, reverse stock split, recapitalization,
combination, reclassification, exchange of shares or the like, the terms “Common Stock”, “Covered Shares”, “Class A
Rollover Shares”, “Rollover Units”, “Rollover Equity”, “Owned Shares”, “Class A Owned
Shares”, “Class B Owned Shares” and “Owned Units” shall be deemed to refer to and include such shares
as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed
or exchanged or which are received in such transaction.
13. Further
Assurances. Parent and Stockholders shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional
or further consents, documents and other instruments as Parent and the Stockholders may reasonably request to the extent necessary to
effect the transactions contemplated by this Agreement and the Merger Agreement, including any documentation necessary to effect the Rollover
in accordance with the terms hereof.
14. Notices.
All notices, requests, instructions or other communications or documents to be given or made hereunder by any party to the other parties
to this Agreement shall be in writing and (a) served by personal delivery by hand upon the part(ies) for whom it is intended, (b) served
by an internationally recognized overnight courier service upon the part(ies) for whom it is intended, (c) delivered by registered
or certified mail, return receipt requested or (d) sent by email:
if to Stockholder to:
c/o Stone Point Capital LLC
20 Horseneck Lane
Greenwich, CT 06830
| Attn: | Fayez S. Muhtadie; Peter M. Mundheim |
| Email: | fmuhtadie@stonepoint.com; pmundheim@stonepoint.com |
with a copy (which will not constitute notice) to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
| Attn: | Elizabeth A. Cooper; Mark C. Viera |
| Email: | ecooper@stblaw.com; mark.viera@stblaw.com |
if to Parent to:
c/o Clayton Dubilier & Rice,
LLC
375 Park Avenue, 18th Floor
New York, NY 10152
| Email: | dwinokur@cdr-inc.com |
with a copy (which will not constitute notice) to:
Kirkland &
Ellis LLP
601 Lexington Avenue
New York, New York 10022
| Attn: | David Klein, P.C.; Rachael Coffey,
P.C. |
| Email: | dklein@kirkland.com; rachael.coffey@kirkland.com |
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
| Attn: | Richard Campbell, P.C.; Kevin
Mausert, P.C. |
| Email: | rcampbell@kirkland.com; kmausert@kirkland.com |
If to the Company, to:
Focus
Financial Partners Inc.
875 Third Avenue, 28th Floor
New York, NY 10022
| Attention: | Russell McGranahan |
| Email: | rmcgranahan@focuspartners.com |
with a copy (which shall not constitute notice)
to:
Vinson &
Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Vinson &
Elkins L.L.P.
1114 Avenue of the Americas, 32nd Floor
New York, NY 10036
| Attention: | Stancell Haigwood |
| Email: | shaigwood@velaw.com |
and
Potter Anderson & Corroon LLP
1313 North Market Street, 6th Floor
Wilmington, DE 19801
| Email: | mmorton@potteranderson.com |
15. Interpretation.
The headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference
shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. If a term is defined as one part of speech
(such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this
Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa,
and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The
words “includes” or “including” shall mean “including without limitation,” the words “hereof,”
“hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement
as a whole and not any particular section or article in which such words appear, the word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if,”
any reference to a Law shall include any rules and regulations promulgated thereunder, and any reference to any Law in this Agreement
shall mean such Law as from time to time amended, modified or supplemented. Currency amounts referenced herein are in U.S. Dollars. Each
reference to a “wholly-owned Subsidiary” or “wholly-owned Subsidiaries” of a Person shall be deemed to include
any Subsidiary of such Person where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other
than directors qualifying shares, nominee shares or other equity interests that are required by Law or regulation to be held by a director
or nominee).
16. Entire
Agreement. This Agreement (along with the documents referenced herein), the Interim Investors Agreement and the Merger Agreement collectively
constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written
and oral, among the parties hereto, with respect to the subject matter hereof.
17. No
Third-Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective
successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person
any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18. Governing
Law and Venue; Waiver of Jury Trial. This Agreement and any claim, cause of action or proceeding (whether at law, in contract or in
tort) that may directly or indirectly be based upon, relate to or arise out of this Agreement or any transaction contemplated hereby,
or the negotiation, execution or performance hereunder shall be governed by and construed and enforced 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 jurisdictions other than the State of Delaware. In addition,
each of the parties hereto (i) irrevocably and unconditionally submits to the personal jurisdiction and venue of the Court of Chancery
of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State
of Delaware does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, if jurisdiction
is not then available in the United States District Court for the District of Delaware, then any Delaware state court) (the “Chosen
Courts”) in the event of any claim, cause of action or proceeding between or among the parties hereto (whether in contract,
tort, or otherwise) arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) expressly waives any
claim of lack of personal jurisdiction or improper venue and any claims that such courts are an inconvenient forum with respect to such
a claim; (iii) agrees that it shall not bring any claim, cause of action or proceeding against any other parties hereto arising out
of or relating to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts and that a final judgment
in any legal proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable Law; and (iv) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from the Chosen Courts. Each of the parties irrevocably consents to the service of process of any
of the aforementioned courts in any such claim, cause of action or proceeding by the mailing of copies thereof by registered or certified
mail or by overnight courier service, postage prepaid, to its address set forth in Section 14. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, CAUSE OF ACTION OR PROCEEDING (WHETHER AT LAW, IN CONTRACT, TORT OR OTHERWISE) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (i) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18, (iii) UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THIS WAIVER, AND (iv) MAKES THIS WAIVER VOLUNTARILY.
19. Assignment;
Successors. Other than as provided herein, neither this Agreement nor any of the rights, interests or obligations under this Agreement
(including those set forth in Section 2.1(a)) may be assigned or delegated, in whole or in part, by operation of Law or otherwise,
by any party hereto without the prior written consent of the other parties hereto, and any such assignment without such prior written
consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and assigns.
20. Enforcement.
The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would
occur in the event that the parties hereto do not perform the provisions of this Agreement (including any party hereto failing to take
such actions that are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise
breach such provisions. The parties hereto acknowledge and agree that (a) the parties hereto will be entitled, in addition to any
other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief to prevent
breaches (or threatened breaches) of this Agreement or to enforce specifically the terms and provisions hereof, (b) the parties hereto
will not assert that a remedy of monetary damages would provide an adequate remedy for such breach and (c) the right of specific
enforcement is an integral part of the transactions contemplated hereby and without that right, none of the Company, Parent, Topco, Topco
Aggregator or the Stockholder would have entered into this Agreement.
21. Non-Recourse.
This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement, or the negotiation,
execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties hereto and then
only with respect to the specific obligations set forth herein with respect to such party. No past, present or future director, officer,
employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, Affiliate, agent,
attorney or other Representative of any party hereto or any of their successors or permitted assigns or any direct or indirect director,
officer, employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, Affiliate,
agent, attorney, Representative, successor or permitted assign of any of the foregoing, shall have any liability to the Stockholder, Parent,
the Company, Topco or Topco Aggregator for any obligations or liabilities of any party under this Agreement or for any legal proceeding
(whether in tort, contract or otherwise) based on, in respect of or by reason of the transactions contemplated hereby or in respect of
any written or oral representations made or alleged to be made in connection herewith.
22. Severability.
In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such
provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties
hereto further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
23. Counterparts.
This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same
agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the
other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Any such counterpart, to the extent
delivered by electronic delivery, will be treated in all manners and respects as an original executed counterpart and will be considered
to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto may raise
the use of an electronic delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of an electronic delivery, as a defense to the formation of a contract, and each party hereto forever waives
any such defense, except to the extent such defense relates to lack of authenticity.
24. Amendment;
Waiver. This Agreement may be amended by the parties hereto, and the terms and conditions hereof may be waived, only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the party
waiving compliance. No failure or delay on the part of a party in the exercise of any right or remedy hereunder shall impair such right
or power or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall
any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right or power.
25. No
Presumption Against Drafting Party. The Company, Parent and the Stockholder acknowledge that each party to this Agreement has been
represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of
Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has
no application and is expressly waived.
26. No
Agreement until Executed. This Agreement shall not be effective unless and until the Company Board has approved, for purposes of any
applicable anti-takeover laws and regulations, and any applicable provision of the Amended and Restated Certificate of Incorporation of
the Company, the Merger Agreement, this Agreement and the transactions contemplated by the Merger Agreement, including the Mergers.
27. No
Ownership Interest. Except as expressly provided in Section 2 with respect to the Rollover Equity, (a) nothing contained
in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any
Covered Shares and (b) all ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong
to the Stockholder.
28. Company
Special Committee Approval. Notwithstanding any provision to the contrary, no amendment or waiver of any provision of this Agreement
shall be made by the Company or the Company Board without first obtaining the approval of the Special Committee. The Special Committee
shall direct enforcement by the Company of any provisions of this Agreement against the Stockholder.
[Signature
pages follow]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
TRIDENT FFP LP |
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By: |
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Name: |
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Title: |
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TRIDENT VI, L.P. |
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By: |
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Name: |
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Title: |
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TRIDENT VI PARALLEL FUND, L.P. |
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By: |
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Name: |
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Title: |
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TRIDENT VI DE PARALLEL FUND, L.P. |
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By: |
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Name: |
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Title: |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
Ferdinand FFP Acquisition, LLC |
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By: |
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Name: |
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Title: |
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Ferdinand FFP Ultimate Holdings, LP |
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By: |
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Name: |
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Title: |
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Ferdinand FFP Parent, Inc. |
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By: |
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Name: |
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Title: |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
FOCUS FINANCIAL PARTNERS INC. |
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By: |
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Name: |
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Title: |
[Signature
Page to Support Agreement]
Exhibit A
Owned Shares
Stockholder | |
Class A Owned Shares | | |
Class B Owned Shares | | |
Owned Units | |
Trident FFP LP | |
| - | | |
| 8,250,165 | | |
| 8,250,165 | |
Trident VI, L.P. | |
| 955,755 | | |
| - | | |
| - | |
Trident VI Parallel Fund, L.P. | |
| 6,701,039 | | |
| - | | |
| - | |
Trident VI DE Parallel Fund, L.P. | |
| 142,016 | | |
| - | | |
| - | |
[Exhibit A to Support
Agreement]
Exhibit B
Rollover Equity
Stockholder | |
Class A Rollover Shares | | |
Class B Rollover Shares | | |
Rollover Units | |
Trident FFP LP | |
| - | | |
| 4,125,083 | | |
| 4,125,083 | |
Trident VI, L.P. | |
| 477,877 | | |
| - | | |
| - | |
Trident VI Parallel Fund, L.P. | |
| 3,350,520 | | |
| - | | |
| - | |
Trident VI DE Parallel Fund, L.P. | |
| 71,008 | | |
| - | | |
| - | |
[Exhibit B to
Support Agreement]
Exhibit
B
Exchange Notice
Exhibit
C
Certificate of Incorporation
of the Surviving Company
Final
Form
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
Focus
Financial Partners Inc.
ARTICLE One
The name of the Corporation
is Focus Financial Partners Inc. (the "Corporation").
ARTICLE Two
The address of the Corporation's
registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE Three
The nature of the business or
purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE Four
The total number of shares of
capital stock that the Corporation has authority to issue is 1,100 shares of Common Stock, par value $0.01 per share (the “Common
Stock”). The Common Stock shall consist of two series, Series A Common Stock, par value $0.01 per share (the “Series A
Common Stock”) and Non-Voting Series B Common Stock, par value $0.01 per share (the “Non-Voting Series B
Common Stock”). The Corporation has authority to issue 1,000 shares of Series A Common Stock and 100 shares of Non-Voting
Series B Common Stock. The Corporation may issue fractional shares of Series A Common Stock or Non-Voting Series B Common
Stock.
Dividends shall accrue on the
Non-Voting Series B Common Stock on a daily basis at the rate of 12% per annum multiplied by the “Stated Value”. All
accrued dividends on any outstanding share of Non-Voting Series B Common Stock shall be paid in cash on each anniversary of the issuance
of any shares of Non-Voting Series B Common Stock, only when as and if declared by the board of directors of the Corporation and
to the extent not prohibited by Section 170 of the DGCL and only out of funds legally available therefor. To the extent any dividend
is not paid on a relevant payment date, or is elected by the Corporation not to be paid on a relevant payment date, such dividends during
such one year period shall accumulate and be added to the “Stated Value” of a share of Non-Voting Series B Common Stock.
When used herein, the “Stated Value” means, for each share of Non-Voting Series B Common Stock, $100,000. Whether or
not all accumulated dividends or other accrued and unpaid dividends on Non-Voting Series B Common Stock have been paid in full, the
board of directors of the Corporation may declare dividends on the Series A Common Stock at such times and in such amounts as the
board of directors of the Corporation may determine and each share of Series A Common Stock shall be entitled to share ratably in
such dividends.
In any liquidation, dissolution
or winding up of the Corporation, prior to any payment or distribution in respect of the Series A Common Stock, each share of Non-Voting
Series B Common Stock shall be entitled to receive the Stated Value on such share plus all accrued and unpaid dividends and thereafter
shall not be entitled to participate in any payment or distribution out of any assets of the Corporation. After payment in full of the
amounts due in respect of each share of Non-Voting Series B Common Stock, in any liquidation, dissolution or winding up of the Corporation,
the remaining assets of the Corporation shall be distributed to the holders of Series A Common Stock ratably on a per share basis.
No merger or consolidation to which the Corporation is a party shall be treated as a liquidation, dissolution or winding up of the Corporation.
Except as required by the DGCL,
in any matter submitted to stockholders of the Corporation for vote (including the election of directors), (a) each share of Series A
Common Stock shall be entitled to one vote and (b) no share of Non-Voting Series B Common Stock shall be entitled to any vote
on any matter.
No share of Non-Voting Series B
Common Stock is convertible into Series A Common Stock and no share of Series A Common Stock is convertible into Non-Voting
Series B Common Stock.
ARTICLE Five
The Corporation is to have perpetual
existence.
ARTICLE Six
In furtherance and not in limitation
of the powers conferred by statute, the board of directors of the Corporation shall have the power to adopt, amend, make, alter or repeal
the bylaws of the Corporation.
ARTICLE Seven
Meetings of stockholders may
be held within or outside of the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be
kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the
bylaws of the Corporation. Election of directors of the Corporation need not be by written ballot unless the bylaws of the Corporation
so provide.
ARTICLE Eight
No director of the Corporation
shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted under the DGCL as it now exists. In addition to the circumstances
in which a director of the Corporation is not personally liable as set forth in the preceding sentence, a director of the Corporation
shall not be liable to the fullest extent permitted by any amendment to the DGCL hereafter enacted that further limits the liability of
a director.
The Corporation shall have the
power to indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director,
officer, employee, agent or trustee of the Corporation, any predecessor of the Corporation or any subsidiary or affiliate of the Corporation,
or serves or served at any other enterprise as a director, officer, employee, agent or trustee at the request of the Corporation or any
predecessor to the Corporation.
Any amendment, repeal or modification
of this Article Eight shall be prospective only and shall not affect any limitation on liability of a director for acts or omissions
occurring prior to the date of such amendment, repeal or modification.
ARTICLE Nine
The Corporation expressly elects
not to be governed by §203 of the General Corporation Law of the State of Delaware.
ARTICLE Ten
The Corporation reserves the
right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed
herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE Eleven
To the maximum extent permitted
from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in,
or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors
or stockholders, other than those officers, directors or stockholders who are employees of the Corporation. No amendment or repeal of
this Article Eleven shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder
of the Corporation for or with respect to any opportunities of which such officer, director, or stockholder becomes aware prior to such
amendment or repeal.
* * * * *
Exhibit
D-1
Form of Affirmative Consent
Notice
Exhibit
D-2
Form of Negative Consent
Notice
Exhibit 10.1
Execution Version
SUPPORT AGREEMENT
This
Support Agreement (this “Agreement”), dated as of February 27, 2023, is entered into by and among the
undersigned stockholders of the Company (the “Stockholders”), Ferdinand FFP Ultimate Holdings, LP, a Delaware limited
partnership (“Topco Aggregator”), Ferdinand FFP Parent, Inc., a Delaware corporation and a direct, wholly owned
subsidiary of Topco Aggregator (“Topco” and, together with Topco Aggregator, the “Topco Parties”),
Focus Financial Partners Inc., a Delaware corporation (the “Company”), and Ferdinand FFP Acquisition, LLC, a Delaware
limited liability company and an indirect, wholly owned subsidiary of Topco (“Parent”). Capitalized terms used but
not defined herein shall have the meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) the Company, (ii) Focus Financial Partners, LLC, a Delaware
limited liability company (“Focus LLC”), (iii) Parent, (iv) Ferdinand FFP Merger Sub 1, Inc., a Delaware
corporation and a direct, wholly owned Subsidiary of Parent (“Company Merger Sub”), and (v) Ferdinand FFP Merger
Sub 2, LLC, a Delaware limited liability company and a direct, wholly owned Subsidiary of Parent (“LLC Merger Sub”),
will enter into an Agreement and Plan of Merger (as may be amended from time to time, the “Merger Agreement”),
which provides for, among other things, the merger of Company Merger Sub with and into the Company (the “Company Merger”)
with the Company surviving the Company Merger as a wholly owned subsidiary of Parent;
WHEREAS,
as of the date hereof, each of the Stockholders is the record or “beneficial owner” (within the meaning of Rule 13d-3
under the Exchange Act) of (i) the number of shares of Class A Common Stock, par value $0.01 per share, of the Company (the
“Class A Common Stock”) set forth opposite such Stockholder’s name on Exhibit A hereto under
the heading “Class A Owned Shares”, collectively being all of the shares of Class A Common Stock owned of record
or beneficially by the Stockholders as of the date hereof (the “Class A Owned Shares”), (ii) the
number of shares of Class B Common Stock, par value $0.01 per share, of the Company (the “Class B Common Stock”
and the Class A Common Stock and Class B Common Stock, collectively, the “Common Stock”) set forth opposite
such Stockholder’s name on Exhibit A hereto under the heading “Class B Owned Shares”, collectively
being all of the shares of Class B Common Stock owned of record or beneficially by the Stockholders as of the date hereof (the “Class B
Owned Shares” and together with the Class A Owned Shares, the “Owned Shares”) and (iii) the number
of Focus LLC Units set forth opposite such Stockholder’s name on Exhibit A hereto under the heading “Owned Units”,
collectively being all of the equity of Focus LLC owned of record or beneficially by the Stockholders as of the date hereof (the “Owned
Units”);
WHEREAS, in connection with
the Closing, each of the Stockholders will contribute and transfer the number of Class A Owned Shares set forth opposite such Stockholder’s
name on Exhibit B hereto under the heading “Class A Rollover Shares”, as adjusted in accordance with Section 2.1
(such shares, the “Class A Rollover Shares”), which Class A Rollover Shares otherwise would be converted
into the right to receive the Merger Consideration in cash (the aggregate amount of the Merger Consideration that would have been payable
in respect of the Class A Rollover Shares but for the transactions contemplated by this Agreement and their classification as Excluded
Shares as a result of the transactions contemplated hereby, the “Class A Rollover Amount”) to Topco, which indirectly
owns 100% of the equity interests of Parent, on the Closing Date and immediately prior to the Vested Units Exchanges and the LLC Merger
Effective Time (the “Rollover Time”), in exchange for a number of newly issued shares of Topco with an aggregate value
equal to the Class A Rollover Amount (the “Exchanged Class A Shares”);
WHEREAS, in connection with
the Closing, each of the Stockholders will contribute and transfer the number of Owned Units and corresponding Class B Owned Shares
set forth opposite such Stockholder’s name on Exhibit B hereto under the heading “Rollover Units”, as adjusted
in accordance with Section 2.1 (such paired units and shares, the “Rollover Units” and together with the
Class A Rollover Shares, the “Rollover Equity”), which Rollover Units otherwise would be exchanged into shares
of Class A Common Stock and converted into the right to receive the Merger Consideration in cash but for the transactions contemplated
by this Agreement and their exclusion from the Vested Units Exchanges pursuant to Section 1.1 of the Merger Agreement (the aggregate
amount of the Merger Consideration that would have been payable in respect of the Rollover Units if such Rollover Units were exchanged
for shares of Class A Common Stock pursuant to Section 1.1 of the Merger Agreement, the “Unit Rollover Amount”,
and collectively with the Class A Rollover Amount, the “Rollover Amount”) to Topco at the Rollover Time, in exchange
for a number of newly issued shares of Topco with an aggregate value equal to the Unit Rollover Amount (the “Exchanged Unit
Shares”, together with the Exchanged Class A Shares, the “Exchanged Shares”) (the contribution of the
Rollover Equity by the Stockholders to Topco, the “Topco Rollover”);
WHEREAS, immediately following
the Topco Rollover, each of the Stockholders will contribute and transfer the Exchanged Shares to Topco Aggregator, in exchange for a
number of newly issued units of Topco Aggregator (the “Topco Aggregator Units”) with an aggregate value (based on
the same per unit price paid by Clayton, Dubilier & Rice Fund XII, L.P. (or its affiliates) (collectively, the “Sponsor”)
for the units issued to the Sponsor by Topco Aggregator at the Closing (the “Sponsor Units”)) equal to the Rollover
Amount (the contribution of the Exchanged Shares by the Stockholders to Topco Aggregator, the “Topco Aggregator Rollover”);
and
WHEREAS, as a condition and
inducement to Parent’s willingness to enter into the Merger Agreement and concurrently with the execution and delivery of the Merger
Agreement, Parent has required that each of the Stockholders, and the Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Stockholders,
the Company, Parent, Topco and Topco Aggregator hereby agree as follows:
1. Agreement
to Vote the Covered Shares.
1.1 Beginning
on the date hereof until the Termination Date (as defined below), at every meeting of the Company’s stockholders, including any
postponement, recess or adjournment thereof, or in any other circumstance, in each case, upon which a vote, consent or other approval
(including a written consent) with respect to the Merger Agreement, the Mergers or any other transaction contemplated by the Merger Agreement
is sought each Stockholder agrees to, and if applicable, to cause its controlled Affiliates to, affirmatively vote (including via proxy)
or execute consents with respect to (or cause to be voted (including via proxy) or consents to be executed with respect to) all of the
Owned Shares and any additional shares of Common Stock or other voting securities of the Company acquired by such Stockholder or its
controlled Affiliates after the date hereof and prior to the Termination Date (collectively, and together with the Owned Shares, the
“Covered Shares”) as follows: (a) in favor of (i) the adoption of the Merger Agreement and the approval
of the Mergers, (ii) the approval of any proposal to adjourn or postpone any Company Stockholders Meeting if the Company or Parent
proposes or requests such postponement or adjournment in accordance with Section 6.4 of the Merger Agreement, and (iii) the
approval of any other proposal considered and voted upon by the stockholders of the Company at any Company Stockholders Meeting necessary
or desirable for the consummation of the Mergers and the transactions contemplated by the Merger Agreement, and (b) against (i) any
proposal, action or agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or
other obligation or agreement of the Company contained in the Merger Agreement or that would reasonably be expected to result in any
condition set forth in Sections 7.1 or 7.2 of the Merger Agreement not being satisfied or not being fulfilled prior to the Termination
Date, (ii) any Acquisition Proposal, (iii) any reorganization, dissolution, liquidation, winding up or similar extraordinary
transaction involving the Company (except as contemplated by the Merger Agreement) and (iv) any other action, agreement or proposal
which would reasonably be expected to prevent, materially impede or materially delay the consummation of the Mergers or any of the transactions
contemplated by the Merger Agreement (clauses (a) and (b) collectively, the “Supported Matters”). Each Stockholder
agrees to, and agrees to cause its applicable controlled Affiliates to, be present, in person or by proxy, at every meeting of the Company’s
stockholders, including any postponement, recess or adjournment thereof, or in any other circumstance, however called, to vote on the
Supported Matters (in the manner described in this Section 1.1) so that all of the Covered Shares will be counted for purposes of
determining the presence of a quorum at such meeting, or otherwise cause the Covered Shares to be counted as present thereat for purposes
of establishing a quorum. For the avoidance of doubt, other than with respect to the Supported Matters, each Stockholder does not have
any obligation to vote the Covered Shares in any particular manner and, with respect to such other matters (other than the Supported
Matters), such Stockholder shall be entitled to vote the Covered Shares in its sole discretion.
2. Rollover.
2.1 Contribution
and Rollover. On the terms set forth herein and subject to Section 2.2 and Section 2.3:
(a) Each
Stockholder agrees and covenants to Parent, Topco and Topco Aggregator that it will, (i) at the Rollover Time, contribute, assign,
transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed and delivered) to Topco such Stockholder’s
Rollover Equity in exchange for the issuance by Topco of such Stockholder’s Exchanged Shares to such Stockholder and (ii) immediately
following the Topco Rollover, contribute, assign, transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed
and delivered) to Topco Aggregator such Stockholder’s Exchanged Shares in exchange for the issuance by Topco Aggregator of the
Topco Aggregator Units to such Stockholder, in each case, free and clear of any and all Liens (including any restriction on the right
to vote, sell or otherwise dispose of such Rollover Equity or such Exchanged Shares, as applicable), except as may exist by reason of
this Agreement, the Merger Agreement and applicable securities laws (the “Rollover”).
(b) Notwithstanding
anything to the contrary set forth in this Agreement, to the extent approved in writing by Clayton, Dubilier & Rice, LLC (“CD&R”)
(such approval not to be unreasonably withheld, conditioned or delayed), if any Affiliate of a Stockholder irrevocably commits after
the date hereof, on terms reasonably acceptable to CD&R, to invest an amount of cash in Parent (a “Stockholder Affiliate
Commitment”), (i) the Rollover Amount shall be automatically reduced, without any further action of the parties hereto,
on a dollar-for-dollar basis by the aggregate amount of such Stockholder Affiliate Commitment actually funded, and the Class A Rollover
Amount and the Unit Rollover Amount shall be proportionately reduced by such Stockholder Affiliate Commitment actually funded based on
the Class A Rollover Share Percentage and the Rollover Unit Percentage, respectively, (ii) the number of Class A Rollover
Shares shall be reduced by the quotient of (A) the product of the Class A Rollover Share Percentage and the amount of such
Stockholder Affiliate Commitment actually funded and (B) the Merger Consideration and (iii) the number of Rollover Units shall
be reduced by such number of Focus LLC Units that are exchangeable into such number of shares of Class A Common Stock equal to the
quotient of (A) the product of the Rollover Unit Percentage and the amount of such Stockholder Affiliate Commitment actually funded
and (B) the Merger Consideration. The “Class A Rollover Share Percentage” means a fraction, expressed
as a percentage, the numerator of which is the number of Class A Rollover Shares (determined without giving effect to this Section 2.1(b))
and the denominator of which is the total number of equity interests representing the Rollover Equity (determined without giving effect
to this Section 2.1(b)), with Owned Units and corresponding Class B Owned Shares counting as a single equity interest
for purposes of calculating Rollover Equity. The “Rollover Unit Percentage” means a fraction, expressed as a
percentage, the numerator of which is the number of Rollover Units (determined without giving effect to this Section 2.1(b))
and the denominator of which is the total number of equity interests representing the Rollover Equity (determined without giving effect
to this Section 2.1(b)), with Owned Units and corresponding Class B Owned Shares counting as a single equity interest
for purposes of calculating Rollover Equity.
(c) Each
Stockholder acknowledges and agrees that, from and after the Rollover, except as set forth in Section 2.3, such Stockholder
shall have no right, title or interest in or to the Rollover Equity.
2.2 Conditions
to Rollover. The obligations of each Stockholder to consummate the Rollover is subject to the satisfaction (or waiver by such Stockholder
in writing) of the following conditions:
(a) (i) The
satisfaction, or written waiver by Parent (to the extent permitted by the Merger Agreement), of all conditions to the obligations of
Parent and Merger Subs to consummate the Mergers and the transactions contemplated by the Merger Agreement that are to occur on the Closing
Date as set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied
at the Closing, but subject to the satisfaction or written waiver by Parent (to the extent permitted by the Merger Agreement) of such
conditions), (ii) the satisfaction, or written waiver by the Company (to the extent permitted by the Merger Agreement), of all conditions
to the obligations of the Company to consummate the Mergers and the transactions contemplated by the Merger Agreement that are to occur
on the Closing Date as set forth in Sections 7.1 and 7.3 of the Merger Agreement (other than those conditions that by their terms are
to be satisfied at the Closing, but subject to the satisfaction or written waiver by the Company (to the extent permitted by the Merger
Agreement) of such conditions), (iii) the substantially concurrent funding of the Equity Financing on the terms and subject to the
conditions set forth in the Equity Commitment Letters and (iv) the consummation of the Mergers immediately following the Rollover;
and
(b) No
Law enacted, entered, promulgated, enforced or issued by any Governmental Authority shall be in effect preventing the consummation of,
or otherwise making illegal, the Rollover.
2.3 Failure
to Consummate the Mergers. In the event that after the Rollover, the Mergers fails to be consummated for any reason whatsoever and
the Merger Agreement is terminated, the parties hereto agree that concurrently with the termination of the Merger Agreement, automatically
and without any action of the parties hereto, Topco Aggregator shall assign, transfer, convey and deliver (or shall cause to be assigned,
transferred, conveyed and delivered) to the Stockholders the Rollover Equity and the Stockholders shall assign, transfer, convey and
deliver to Topco Aggregator the Topco Aggregator Units issued to the Stockholders. In such event, each party hereto shall, as promptly
as practicable, provide all such cooperation as the other parties hereto may reasonably request in order to ensure that the foregoing
has occurred and been made effective.
2.4 Tax
Treatment. The parties hereto agree that, for U.S. federal (and applicable state and local) income tax purposes, (a) the Topco
Rollover, together with the contributions by Topco Aggregator to Topco in connection with the transactions contemplated by the Merger
Agreement, are intended to constitute a single integrated transaction and be treated as a transaction described in Section 351(a) of
the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations promulgated thereunder and
(b) the Topco Aggregator Rollover is intended to be treated as a transaction described in Section 721(a) of the Code (the
“Intended Tax Treatment”). Each party hereto shall prepare and file (and shall cooperate in the preparation and filing
of, as reasonably requested) all Tax Returns in a manner consistent with the Intended Tax Treatment and shall not take any position inconsistent
with the Intended Tax Treatment in connection with any tax matters, in each case, unless otherwise required pursuant to a final “determination”
within the meaning of Section 1313(a)(1) of the Code. The Topco Parties and the Stockholders shall use their reasonable best
efforts to cause the transactions contemplated by this Agreement to qualify for the Intended Tax Treatment and shall not take any action
(or fail to take any action) that knowingly would, or that knowingly would reasonably be likely to cause the transactions not to so qualify.
2.5 Termination.
Parent shall not be permitted to terminate its obligations under this Section 2 without the written consent of the Stockholders
(it being understood that this Section 2 shall also be terminated automatically, without any further action required by the parties
thereto, upon any termination of this Agreement pursuant to Section 3).
2.6 Tax
Information. Within ninety (90) days following the Closing Date, each Stockholder shall provide to Topco Aggregator or its accountants
the Stockholder’s estimated tax basis and holding period as of the Closing Date in its Rollover Equity and shall promptly provide
updated information in respect thereof if the Stockholder determines that its actual tax basis or holding period is different than previously
reported. At the Rollover Time, each Stockholder shall deliver to the Topco Parties a properly completed and timely executed IRS Form W-8
or W-9.
2.7 Withholding.
Each of Parent, Topco, and Topco Aggregator (and any Affiliates and designees of the foregoing), shall be entitled to deduct or withhold
from any amounts owing from such Persons to any Stockholder (including withholding equity interests in the case of issuances of equity
by such Persons) for any federal, state, local or non-U.S. withholding taxes, excise taxes, or employment taxes imposed with respect
to compensation or other payments to such Stockholder or such Stockholder's ownership interest in Topco Aggregator, Topco, or their Affiliates,
including, without limitation, equity issuances, wages, bonuses, distributions, the receipt or exercise of equity options and/or the
receipt or vesting of restricted equity; provided, that the Person intending to make any such deduction or withholding (other
than compensatory withholding or withholding resulting from the failure of a Stockholder to provide the forms required under Section 2.6)
shall reasonably cooperate with the applicable Stockholder in determining whether any reductions or exemptions from withholding are available,
including providing such Stockholder with a reasonable opportunity to provide such forms, certificates or other evidence to eliminate
or reduce any such required deduction or withholding. To the extent any amounts are so deducted or withheld, such deducted or withheld
amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Stockholder. In the event any such
deductions or withholdings are not made with respect to a Stockholder, such Stockholder shall indemnify Parent, Topco, and Topco Aggregator
(and any Affiliates and designees of the foregoing) for any amounts paid with respect to the applicable taxes, together with any interest,
penalties and related expenses thereto. Each Stockholder shall provide Topco Aggregator with such additional tax-related information,
certifications and documentation as Topco Aggregator may request.
2.8 Additional
Tax Matters. The Topco Parties agree that the Limited Partnership Agreement of Topco Aggregator at the Rollover Time shall include
the following provisions substantially the same and not materially different than the following:
(a) (A) In
the event of an in-kind distribution by Topco Aggregator to some or all of its partners (whether or not in full or partial redemption
of the any partner’s interest in Topco Aggregator), the partner shall receive (or be deemed to receive), to the extent possible,
(and Topco Aggregator shall record on its books and records the distribution as being a distribution of): (x) first, if the in-kind
distribution includes any assets such partner contributed to Topco Aggregator (“Contributed Assets”), such Contributed
Assets shall be distributed to such partner to the extent of any amounts due to such partner in respect of such distribution, and (y) second,
to the extent that no further distribution can be made in accordance with clause (x), or if the in-kind distribution does not include
any Contributed Assets with respect to such partner, then, property shall be distributed to such partner other than Contributed Assets
with respect to any other partner, (B) any future partial disposition by Topco Aggregator of common stock of Topco shall be structured,
to the extent possible such that the items of income, gain, loss or deduction resulting from such disposition are allocated (taking into
account any allocations required pursuant to Section 704(c) of the Code) to the partners to whom the proceeds are intended
to be distributed, as determined by the General Partner in good faith and (C) in the event that after the Closing Date there shall
be additional capital contributions of property or cash into Topco Aggregator and to the extent such property or cash is further contributed
to Topco (or any successor thereof), such contribution to Topco shall only be made in exchange for newly issued shares of common stock
of Topco, on a value for value basis, governed by Section 351 of the Code (i.e., not as a paid-in capital). For purposes of the
provisions set forth in this Section 2.7(a), (i) a Stockholder shall include a successor in interest that is considered to
have contributed assets (other than cash or cash equivalents) to Topco Aggregator under Sections 1.704-3(a)(7) and 1.737-1(c)(2)(iii) of
the Treasury Regulations, and (ii) any Contributed Assets shall include assets that are treated as substituted basis property under
Sections 1.704-3(a)(8)(i) and 1.737-2(d)(3)(i) of the Treasury Regulations as a result of having been received by Topco Aggregator
in respect of Contributed Assets in an exchange or series of exchanges in which no gain or loss was recognized as provided in Sections
1.704-3(a)(8)(i) and 1.737-2(d)(3)(i) of the Treasury Regulation, including for these purposes, but not limited to, shares
of Topco issued on account of Topco Rollover pursuant to this Agreement (“Substituted Basis Property”). With respect
to any Contributed Assets (or Substituted Basis Property), Topco Aggregator shall use reasonable efforts to separately identify such
property in order to give effect to this Section 2.7(a), to the extent reasonably practicable. This Section 2.7(a) is
intended to minimize the potential application of Sections 704(c)(1)(B) and 737 of the Code with respect to each partner and shall
be interpreted consistently with that intention.
(b) Topco
Aggregator shall use reasonable best efforts to provide reasonably prompt written notice to the Stockholders if Topco Aggregator obtains
actual knowledge that Topco becomes or is likely to become a U.S. real property holding corporation.
3. Termination.
This Agreement shall terminate automatically and without further action upon the earliest to occur of: (i) the valid termination
of the Merger Agreement in accordance with its terms, (ii) the Company Merger Effective Time (following the consummation of the
Rollover), (iii) any amendment of the Merger Agreement, without the prior written consent of the Stockholders, that reduces the
amount of the Merger Consideration or changes the form of the Merger Consideration (such amendment, an “Adverse Amendment”)
or (iv) the written consent of the Stockholders, Parent and the Company (such date, the “Termination Date”);
provided that the provisions set forth in Sections 2.3, and 12 through 26 shall survive the termination of
this Agreement; provided, further, that Sections 2.4, 2.6 and 2.7 shall survive the termination of
this Agreement pursuant to the foregoing clause (ii); provided, further, that Section 4.5 and the provisions
and obligations incorporated by reference in Section 4.5 shall survive to the extent that, and only for so long as, the corresponding
provisions referenced therein survive under the terms of the Interim Investors Agreement; and provided further that the termination
of this Agreement shall not prevent any party hereto from seeking any remedies (at law or in equity) against (x) any other party
hereto for that party’s Willful Breach of this Agreement that may have occurred on or before such termination or (y) against
any of the Stockholders for such Stockholder’s material breach of Sections 2.1(a), 4.3(b) and 4.5 (including,
for the avoidance of doubt, any material breach of any of the provisions of the Interim Investors Agreement incorporated by reference
in Section 4.5) (any material breach contemplated by this clause (y), a “Material Rollover Breach”). For
the purpose hereof, “Willful Breach” means a material breach of this Agreement (other than a Material Rollover Breach)
that is a consequence of a willful or deliberate act or failure to act by a Party that knows or would reasonably be expected to have
known that the taking of such act or failure to act would, or would reasonably be expected to, cause a breach of this Agreement.
4. Certain
Covenants.
4.1 Acquisition
Proposals.
(a) From
and after the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the
Company Merger Effective Time, subject to Section 8, each of the Stockholders hereby agrees that it shall not, and it shall instruct
and use its reasonable best efforts to cause its Representatives not to, directly or indirectly:
(1) initiate,
solicit, propose or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes,
or would reasonably be expected to lead to, any Acquisition Proposal;
(2) engage
in, continue or otherwise participate in any discussions or negotiations regarding, or provide any nonpublic information or data to any
Person or Group relating to, any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to
an Acquisition Proposal (other than to state that the terms of this Section 4.1 prohibit such discussions);
(3) furnish
to any Person (other than Parent or any of its Affiliates) any non-public information relating to the Company or any of its Subsidiaries
or afford to any such Person access to the business, properties, assets, books, records or other non-public information, or to any personnel,
of the Company and its Subsidiaries, in any such case with the intent to induce, or that could reasonably be expected to result in, the
making, submission or announcement of, an Acquisition Proposal;
(4) approve,
endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; or
(5) resolve
or agree to do any of the foregoing.
(b) Notwithstanding
anything to the contrary in Section 4.1(a):
(1) From
the date hereof until the No-Shop Period Start Date (or with respect to an Excluded Party, the Cut-Off Time), the Stockholders may, at
the Company’s request and with substantially concurrent written notice to Parent (which notice shall include the identity of the
Third Person referenced in this Section 4.1(b)(1)), engage in discussions with a Third Person who has submitted an Acquisition Proposal
solely for the purpose of confirming that the Stockholders are willing to enter into an agreement to vote in favor of such Acquisition
Proposal if the Company Board (acting on the recommendation of the Special Committee) or the Special Committee, as applicable, were to
subsequently determine that such Acquisition Proposal constitutes a Superior Proposal in accordance with Section 6.2 of the Merger
Agreement.
(2) The
Stockholders and their Representatives may engage in or otherwise participate in discussions or negotiations regarding a bona fide written
Acquisition Proposal that the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee has determined
in good faith based on the information then available and after consultation with its financial advisor and outside counsel either constitutes
a Superior Proposal or is reasonably likely to result in a Superior Proposal in accordance with the Merger Agreement and the failure
to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) From
the date hereof until the earlier of the termination of the Merger Agreement pursuant to Article VIII thereof and the Effective
Time, subject to Section 8, each Stockholder (solely in its capacity as a stockholder of the Company) agrees that it will promptly
(and, in any event, within twenty-four hours) notify Parent in writing following any discussions or negotiations with any Person or Group
pursuant to Section 4.1(b) and shall provide, in connection with such notice, the material terms and conditions of any proposal,
indication of interest (including, for the avoidance of doubt, the form and amount of consideration and proposed financing arrangements),
or offer (including the identity of the Person or Group making such proposal, indication of interest or offer and, if applicable, copies
of any written proposal, indication of interest or offer, including proposed agreements or commitment letters) that is the subject of
such discussions or negotiations, and thereafter shall keep Parent informed, on a reasonably prompt basis (and, in any event, within
twenty-four hours), of any material changes to the status and terms of any such proposal, indication of interest or offer (including
any amendments thereto) and any material changes to the status and terms of any such proposal, indication of interest or offer. Notwithstanding
the foregoing, the Stockholders shall not be required to notify Parent of any discussions or negotiations to the extent the Company has
notified Parent thereof.
4.2 Transfers.
Beginning on the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that, except as expressly contemplated
pursuant to this Agreement, such Stockholder shall not, and shall direct its controlled Affiliates not to, directly or indirectly (i) tender
any Covered Shares into any tender or exchange offer, (ii) offer, sell, transfer, assign, exchange, pledge, hypothecate, encumber,
or otherwise dispose of (collectively, “Transfer”) or enter into any contract, option, agreement, understanding or
other arrangement with respect to the Transfer of, any Covered Shares or beneficial ownership, voting power or any other interest thereof
or therein (including by operation of law), (iii) grant any proxies or powers of attorney, deposit any Covered Shares into a voting
trust or enter into a voting agreement with respect to any Covered Shares that is inconsistent with this Agreement, (iv) enter into
any hedge, swap or other transaction or Contract which is designed to (or is reasonably expected to lead to or result in) a transfer
of the economic consequences of ownership of any Covered Shares, whether any such transaction is to be settled by delivery of Covered
Shares, in cash or otherwise, (v) take an action that would reasonably be expected to prevent or materially impair or materially
delay the consummation of the transactions contemplated by this Agreement or the Merger Agreement or (vi) commit or agree to take
any of the foregoing actions. Any Transfer in violation of this Section 4.2 shall be void ab initio. Notwithstanding
anything to the contrary in this Agreement, but subject to Section 2.1(b), each Stockholder may Transfer any or all of the
Covered Shares from and after the Requisite Company Stockholder Approvals have been obtained; provided that the Stockholders retain,
collectively, such number of Owned Shares and Owned Units that collectively have an aggregate value equal to the Rollover Amount, as
determined in accordance with Section 2.
4.3 Focus
LLC Contribution.
(a) Pursuant
to Section 6.23 of the Merger Agreement, the Company, in its capacity as Managing Member (as such term is defined in the Focus LLC
Agreement) of Focus LLC, has agreed to consent to any Transfer (as such term is defined in the Focus LLC Agreement) of the Rollover Units
as contemplated by this Agreement.
(b) Each
Stockholder hereby covenants and agrees to take or cause to be taken all other or further actions required (including under the Focus
LLC Agreement) to validly contribute, assign, transfer, convey and deliver (or cause to be contributed, assigned, transferred, conveyed
and delivered) to Topco the Rollover Units at the Rollover Time, free and clear of any and all Liens (including any restriction on the
right to vote, sell or otherwise dispose of the Rollover Units), except as may exist by reason of this Agreement, the Merger Agreement
and applicable securities laws. Each Stockholder hereby acknowledges and agrees that to the extent any Rollover Units are exchanged for
shares of Class A Common Stock following the date hereof pursuant to the Focus LLC Agreement, such shares of Class A Common
Stock received pursuant to such exchange shall be treated as Covered Shares and Class A Rollover Shares.
4.4 Termination
of Nomination Agreement. At or prior to the Closing, subject to and conditioned upon the Closing, the Stockholders shall deliver
a termination notice to the Company pursuant to Section 4.2 of that certain Nomination Agreement (as may be amended, supplemented
or otherwise modified in accordance with its terms), dated as of July 30, 2018, by and between the Stockholders and the Company.
4.5 Certain
Agreements. The Stockholders agree to be bound by, subject to the exceptions and limitations set forth therein, the following provisions
of the Interim Investors Agreement, dated as of the date hereof (the “Interim Investors Agreement”), by and among
Topco Aggregator, Topco, Parent and the other parties appearing on the signature pages thereto, as set forth in this Section 4.5:
(a) Section 2.4, mutatis mutandis, as if the Stockholders were Investors (as defined in the Interim Investors Agreement)
and Requisite Investors (as defined in the Interim Investors Agreement) thereunder; (b) Section 2.11, mutatis mutandis,
as if the Stockholders were Sponsor Investors (as defined in the Interim Investors Agreement); (c) Section 2.11(a)(ii) and
Section 2.11(c), mutatis mutandis, as if the Stockholders were Investors thereunder; (d) the last sentence of Section 4.9,
mutatis mutandis, as if the Stockholders were Investors thereunder; (e) Section 4.10, mutatis mutandis, as if
the Stockholders were parties thereunder; provided that such provisions shall not apply to any information received, supplied
or otherwise available to such Stockholders unrelated to the Merger and the transactions contemplated by the Merger Agreement; (f) Section 4.11,
mutatis mutandis, as if the Stockholders were parties thereunder; provided that such provisions shall not apply (other
than the proviso to the first sentence in Section 4.11, which shall continue to apply, mutatis mutandis) to the information
required to be included in the Stockholder's disclosure statements on Schedule 13D or amendments or supplements thereto; and (g) Section 4.12,
mutatis mutandis, as if the Stockholders were parties thereunder. To the extent any Stockholder commits any Material Rollover
Breach which continues uncured for twenty-four (24) hours following notice thereof by Parent to such Stockholder, such Stockholder agrees
to be bound by, subject to the exceptions and limitations set forth therein, Section 2.12(b) and Section 4.4 of the Interim
Investors Agreement, mutatis mutandis, as if such Stockholder were a “Failing Investor” thereunder. Notwithstanding
anything to the contrary set forth in this Agreement or the Interim Investors Agreement, in the event of any Material Rollover Breach
or any Breach (as defined in the Interim Investors Agreement), in no event shall the aggregate liability of the Stockholders hereunder
and SPC (as defined in the Interim Investors Agreement), in the aggregate, exceed an amount equal to the Maximum Liability Cap (as defined
in the Interim Investors Agreement).
5. Proxy
Statement; Schedule 13e-3 and Schedule 13D.
(a) The
Company, Parent and the Stockholders shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly
prepare and file with the SEC the Schedule 13e-3. Each Stockholder will provide information reasonably requested by the Company or Parent
in connection with the preparation of the Schedule 13e-3. To the knowledge of each Stockholder, the information supplied by such Stockholder
for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13e-3 or any other filing Parent or the Company is required
to make in connection with the Mergers will not, at the time that such information is provided, 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 misleading. Promptly after the execution of this Agreement, Parent and the Stockholders
shall cooperate to prepare and file with the SEC one or more disclosure statements on Schedule 13D or amendments or supplements thereto,
as applicable (such disclosure statements, including any amendments or supplements thereto, the “Schedule 13Ds”) relating
to the Merger Agreement and this Agreement and the transactions contemplated hereby and thereby. Parent shall (i) provide the Stockholders
and Stockholders’ counsel a reasonable opportunity to review drafts of the Schedule 13e-3 prior to filing the Schedule 13e-3 with
the SEC and (ii) consider in good faith all comments thereto reasonably proposed by the Stockholders, their outside counsel and
other Representatives. To the extent legally permissible, Parent and the Stockholders shall (A) provide each other and their respective
counsel a reasonable opportunity to review drafts of the Schedule 13Ds prior to filing the Schedule 13Ds with the SEC and (B) consider
in good faith all comments thereto reasonably proposed by the other parties their outside counsel and their other Representatives, it
being understood that failure to provide such prior review or to incorporate any comments shall not in any way limit or preclude Parent
or the Stockholders, as applicable, from amending any such Schedule 13D.
(b) Parent,
Sponsor and the Stockholders will each use its reasonable best efforts to furnish all information concerning such Party and its controlled
Affiliates to the other parties that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13e-3,
and provide such other assistance, as may be reasonably requested by such other Party to be included therein and will otherwise reasonably
assist and cooperate with the other in the preparation, filing and distribution of the Proxy Statement and the Schedule 13e-3 and the
resolution of any comments to either received from the SEC.
6. Representations
and Warranties of the Stockholder. Each Stockholder hereby represents and warrants to Parent and the Company as follows:
6.1 Due
Authority. Such Stockholder is a legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction
of formation. Such Stockholder has all requisite corporate or other similar power and authority and has taken all corporate or other
similar action necessary (including approval by the board of directors or applicable corporate bodies) to execute, deliver, comply with
and perform its obligations under this Agreement in accordance with the terms hereof and to consummate the transactions contemplated
hereby, and no other action on the part of or vote of holders of any equity securities of such Stockholder is necessary to authorize
the execution and delivery of, compliance with and performance by such Stockholder of this Agreement. This Agreement has been duly executed
and delivered by such Stockholder and, assuming the due execution and delivery of this Agreement by the Company, Parent, Topco and Topco
Aggregator, constitutes a legal, valid and binding agreement of such Stockholder enforceable against such Stockholder in accordance with
its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar
Laws affecting or relating to creditors’ rights generally.
6.2 No
Conflict. The execution and delivery of, compliance with and performance of this Agreement by such Stockholder including, for the
avoidance of doubt, the contribution to Topco of the Rollover Units, do not and will not (i) conflict with or result in any violation
or breach of any provision of the certificate of formation or operating agreement or similar organizational documents of such Stockholder,
(ii) conflict with or result in any violation or breach of any provision of the Focus LLC Agreement, (iii) conflict with or
result in a violation or breach of any applicable Law, (iv) require any consent by any Person under, constitute a default, or an
event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation
or acceleration of any right or obligation or the loss of any benefit to which such Stockholder is entitled, under any Contract binding
upon such Stockholder, or to which any of its properties, rights or other assets are subject or (v) result in the creation of a
Lien (other than Permitted Liens) on any of the properties or assets (including intangible assets) of such Stockholder, except in the
case of clauses (i), (ii), (iii), (iv) and (v) above, any such violation, breach, conflict, default, termination, acceleration,
cancellation or loss that would not, individually or in the aggregate, reasonably be expected to restrict in any material respect, prohibit
or impair in any material respect the consummation of the Mergers or the performance by such Stockholder of its obligations under this
Agreement.
6.3 Consents.
No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other
Person, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the consummation
by the Stockholder of the transactions contemplated hereby, except (a) as required by the rules and regulations promulgated
under the Exchange Act, the Securities Act, or state securities, takeover and “blue sky” laws, (b) compliance with any
applicable requirements of the HSR Act and any applicable foreign Antitrust Laws, (c) the applicable rules and regulations
of the SEC or any applicable stock exchange or (d) as would not, individually or in the aggregate, reasonably be expected to restrict
in any material respect, prohibit, impair in any material respect or materially delay the consummation of the Mergers or the performance
by such Stockholder of its obligations under this Agreement.
6.4 Ownership
of the Owned Shares and Owned Units. Such Stockholder is, as of the date hereof, the record and beneficial owner of the Owned Shares
and the Owned Units, all of which are free and clear of any Liens, other than those created by this Agreement, the Merger Agreement,
the Focus LLC Agreement or arising under applicable securities laws. Such Stockholder has the full legal right, power and authority to
deliver the Rollover Equity to Parent pursuant to Section 2. Such Stockholder does not own, of record or beneficially, any shares
of capital stock of the Company, or other rights to acquire shares of capital stock of the Company, in each case other than the Owned
Shares and Owned Units. Such Stockholder has the sole right to dispose of the Owned Shares and Owned Units, and none of the Owned Shares
or Owned Units is subject to any pledge, disposition, transfer or other agreement, arrangement or restriction, except as contemplated
by this Agreement. As of the date hereof, such Stockholder has not entered into any agreement to Transfer any Owned Shares or Owned Units
and no person has a right to acquire any of the Owned Shares or Owned Units held by such Stockholder.
6.5 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of the Stockholder, threatened
against the Stockholder that would reasonably be expected to prevent, materially or materially impair the ability of the Stockholder
to perform its obligations under this Agreement.
6.6 Investment.
The Exchanged Shares and the TopCo Aggregator Units to be acquired by the Stockholder pursuant to this Agreement will be acquired for
the Stockholder’s own account and not with a view to, or intention of, distribution thereof in violation of any applicable state
securities laws. Each Stockholder is an “accredited investor” within the meaning of Rule 501 of Regulation D of the
SEC. Each Stockholder is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Exchanged
Shares and the TopCo Aggregator Units. Each Stockholder is able to bear the economic risk of its investment in the Exchanged Shares and
the TopCo Aggregator Units for an indefinite period of time because the Exchanged Shares and the TopCo Aggregator Units have not been
registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption
from such registration is available. Each Stockholder has had an opportunity to ask questions and receive answers concerning the terms
and conditions of the offering of the Exchanged Shares and the TopCo Aggregator Units and has had access to such other information concerning
Parent as such Stockholder has requested.
6.7 Finders
Fees. No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial
adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by
or on behalf of such Stockholder.
7. Representations
and Warranties of Parent. Parent hereby represents and warrants to the Stockholders as follows:
7.1 Due
Authority. Parent is a legal entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of
formation. Parent has all requisite corporate power and authority and has taken all corporate action necessary (including approval by
the board of directors or applicable corporate bodies) to execute, deliver and perform its obligations under this Agreement in accordance
with the terms hereof and no other corporate action by Parent or vote of holders of any class of the capital stock of Parent is necessary
to approve and adopt this Agreement. This Agreement has been duly executed and delivered by Parent and, assuming the due execution and
delivery of this Agreement by all of the other parties hereto, constitutes a valid and binding agreement of Parent enforceable against
Parent in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar Laws affecting or relating to creditors’ rights generally.
7.2 No
Conflict. The execution, delivery and performance by Parent of this Agreement do not and will not, other than as provided in the
Merger Agreement with respect to the Mergers and the other transactions contemplated thereby, (i) conflict with or result in any
violation or breach of any provision of the certificate of incorporation or bylaws of Parent or the similar organizational documents
of any of its Subsidiaries, (ii) conflict with or result in a violation or breach of any applicable Law, (iii) require any
consent by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute
a default under, or cause or permit the termination, cancellation or acceleration of any right or obligation or the loss of any benefit
to which Parent and any of its Subsidiaries are entitled, under any Contract binding upon Parent or any of its Subsidiaries, or to which
any of their respective properties, rights or other assets are subject or (iv) result in the creation of a Lien (other than Permitted
Liens) on any of the properties or assets (including intangible assets) of Parent or any of its Subsidiaries, except in the case of clauses
(ii), (iii) and (iv) above, any such violation, breach, conflict, default, termination, acceleration, cancellation or loss
that would not reasonably be expected to restrict, prohibit or impair the performance by Parent of its obligations under this Agreement.
7.3 Consents.
No consent, approval, order or authorization of, or registration, declaration or, (except as required by the rules and regulations
promulgated under the Exchange Act, the Securities Act, or state securities, takeover and “blue sky” laws) filing with, any
Governmental Authority or any other Person, is required by or with respect to Parent in connection with the execution and delivery of
this Agreement or the consummation by Parent of the transactions contemplated hereby, except as would not, individually or in the aggregate,
reasonably be expected to restrict, prohibit, impair or delay the consummation of the Mergers or the performance by Parent of its obligations
under this Agreement.
7.4 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of Parent, threatened against
or affecting Parent that would reasonably be expected to prevent, materially delay or materially impair the ability of Parent to perform
its obligations under this Agreement.
7.5 Exchanged
Shares. The Exchanged Shares and the Topco Aggregator Units, when issued to the Stockholder pursuant to the Rollover, will be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and issued free and clear of any Liens, other than those created
by governance documents of Topco or Topco Aggregator, as applicable, or arising under applicable securities Laws.
8. Representations
and Warranties of the Company. The Company hereby represents and warrants to the Stockholders and Parent as follows:
8.1 Due
Authority. The Company is a legal entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction
of formation. The Company has all requisite corporate power and authority and has taken all corporate action necessary (including approval
by the Company Board (acting on the recommendation of the Special Committee)) to execute, deliver and perform its obligations under this
Agreement in accordance with the terms hereof and no other corporate action by the Company or vote of holders of any class of the capital
stock of the Company is necessary to approve and adopt this Agreement. This Agreement has been duly executed and delivered by the Company
and, assuming the due execution and delivery of this Agreement by all of the other parties hereto, constitutes a valid and binding agreement
of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally.
8.2 No
Conflict. The execution, delivery and performance by the Company of this Agreement do not and will not, other than as provided in
the Merger Agreement with respect to the Mergers and the other transactions contemplated thereby, (i) conflict with or result in
any violation or breach of any provision of the certificate of incorporation or bylaws of the Company or the similar organizational documents
of any of its Subsidiaries, (ii) conflict with or result in a violation or breach of any applicable Law, (iii) require any
consent by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute
a default under, or cause or permit the termination, cancellation or acceleration of any right or obligation or the loss of any benefit
to which the Company and any of its Subsidiaries are entitled, under any Contract binding upon the Company or any of its Subsidiaries,
or to which any of their respective properties, rights or other assets are subject or (iv) result in the creation of a Lien (other
than Permitted Liens) on any of the properties or assets (including intangible assets) of the Company or any of its Subsidiaries, except
in the case of clauses (ii), (iii) and (iv) above, any such violation, breach, conflict, default, termination, acceleration,
cancellation or loss that would not reasonably be expected to restrict, prohibit or impair the performance by the Company of its obligations
under this Agreement.
9. Stockholder
Capacity. This Agreement is being entered into by the Stockholders solely in their respective capacity as a record or beneficial
owner of the Owned Shares and Owned Units, and nothing in this Agreement shall restrict or limit the ability of any of the Stockholders
or any of their respective Affiliates or Representatives who is a director or officer of the Company or any of the Company’s Subsidiaries
to take, or refrain from taking, any action in his or her capacity as a director or officer of the Company or any of its Subsidiaries,
including the exercise of fiduciary duties to the Company or its stockholders, and any such action taken in such capacity or any such
inaction shall not constitute a breach of this Agreement, and the provisions of this Agreement shall not apply to such directors or officers
in their capacity as such.
10. Non-Survival
of Representations, Warranties and Covenants. Other than the covenants and agreements in Section 2.4, Section 2.6, Section 2.7,
Section 3, Section 11, Sections 13 through 28 and, solely to the extent and only for so long as the provisions and obligations
incorporated by reference in Section 4.5 survive under the terms of the Interim Investors Agreement, Section 4.5 (and
such applicable provisions incorporated by reference therein), in each case, which shall survive the Company Merger Effective Time, the
representations, warranties and covenants contained herein shall not survive the Company Merger Effective Time.
11. Waiver
of Appraisal and Dissenter Rights and Certain Other Actions. The Stockholder hereby irrevocably and unconditionally waives, to the
fullest extent of the Law, and agrees to cause to be waived and not to assert any appraisal rights, any dissenter’s rights and
any similar rights under Section 262 of the DGCL or otherwise with respect to the Owned Shares or Owned Units with respect to the
Mergers and the transactions contemplated by the Merger Agreement.
12. Certain
Adjustments. In the event of a stock split, stock dividend or distribution, or any change in the Common Stock and Focus LLC Units
by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the
terms “Common Stock”, “Covered Shares”, “Class A Rollover Shares”, “Rollover Units”,
“Rollover Equity”, “Owned Shares”, “Class A Owned Shares”, “Class B Owned Shares”
and “Owned Units” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions
and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
13. Further
Assurances. Parent and Stockholders shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional
or further consents, documents and other instruments as Parent and the Stockholders may reasonably request to the extent necessary to
effect the transactions contemplated by this Agreement and the Merger Agreement, including any documentation necessary to effect the
Rollover in accordance with the terms hereof.
14. Notices.
All notices, requests, instructions or other communications or documents to be given or made hereunder by any party to the other parties
to this Agreement shall be in writing and (a) served by personal delivery by hand upon the part(ies) for whom it is intended, (b) served
by an internationally recognized overnight courier service upon the part(ies) for whom it is intended, (c) delivered by registered
or certified mail, return receipt requested or (d) sent by email:
if to Stockholder to:
c/o Stone Point Capital LLC
20 Horseneck Lane
Greenwich, CT 06830
| Attn: | Fayez S. Muhtadie; Peter M. Mundheim |
| Email: | fmuhtadie@stonepoint.com; pmundheim@stonepoint.com |
with a copy (which will not constitute notice) to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
| Attn: | Elizabeth A. Cooper; Mark C. Viera |
| Email: | ecooper@stblaw.com; mark.viera@stblaw.com |
if to Parent to:
c/o Clayton Dubilier & Rice,
LLC
375 Park Avenue, 18th Floor
New York, NY 10152
| Attn: | David Winokur |
| Email: | dwinokur@cdr-inc.com |
with a copy (which will not constitute notice) to:
Kirkland &
Ellis LLP
601 Lexington Avenue
New York, New York 10022
| Attn: | David Klein, P.C.; Rachael Coffey,
P.C. |
| Email: | dklein@kirkland.com; rachael.coffey@kirkland.com |
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
| Attn: | Richard Campbell, P.C.; Kevin
Mausert, P.C. |
| Email: | rcampbell@kirkland.com; kmausert@kirkland.com |
If to the Company, to:
Focus
Financial Partners Inc.
875 Third Avenue, 28th Floor
New York, NY 10022
| Attention: | Russell McGranahan |
| Email: | rmcgranahan@focuspartners.com |
with a copy (which shall not constitute notice)
to:
Vinson &
Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
| Attention: | Stephen Gill |
| Email: | sgill@velaw.com |
Vinson &
Elkins L.L.P.
1114 Avenue of the Americas, 32nd Floor
New York, NY 10036
| Attention: | Stancell Haigwood |
| Email: | shaigwood@velaw.com |
and
Potter Anderson & Corroon LLP
1313 North Market Street, 6th Floor
Wilmington, DE 19801
| Attention: | Mark A. Morton |
| Email: | mmorton@potteranderson.com |
15. Interpretation.
The headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference
shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. If a term is defined as one part of speech
(such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this
Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa,
and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The
words “includes” or “including” shall mean “including without limitation,” the words “hereof,”
“hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement
as a whole and not any particular section or article in which such words appear, the word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if,”
any reference to a Law shall include any rules and regulations promulgated thereunder, and any reference to any Law in this Agreement
shall mean such Law as from time to time amended, modified or supplemented. Currency amounts referenced herein are in U.S. Dollars. Each
reference to a “wholly-owned Subsidiary” or “wholly-owned Subsidiaries” of a Person shall be deemed to include
any Subsidiary of such Person where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other
than directors qualifying shares, nominee shares or other equity interests that are required by Law or regulation to be held by a director
or nominee).
16. Entire
Agreement. This Agreement (along with the documents referenced herein), the Interim Investors Agreement and the Merger Agreement
collectively constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties
both written and oral, among the parties hereto, with respect to the subject matter hereof.
17. No
Third-Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective
successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person
any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18. Governing
Law and Venue; Waiver of Jury Trial. This Agreement and any claim, cause of action or proceeding (whether at law, in contract or
in tort) that may directly or indirectly be based upon, relate to or arise out of this Agreement or any transaction contemplated hereby,
or the negotiation, execution or performance hereunder shall be governed by and construed and enforced 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 jurisdictions other than the State of Delaware. In addition,
each of the parties hereto (i) irrevocably and unconditionally submits to the personal jurisdiction and venue of the Court of Chancery
of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State
of Delaware does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, if jurisdiction
is not then available in the United States District Court for the District of Delaware, then any Delaware state court) (the “Chosen
Courts”) in the event of any claim, cause of action or proceeding between or among the parties hereto (whether in contract,
tort, or otherwise) arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) expressly waives
any claim of lack of personal jurisdiction or improper venue and any claims that such courts are an inconvenient forum with respect to
such a claim; (iii) agrees that it shall not bring any claim, cause of action or proceeding against any other parties hereto arising
out of or relating to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts and that a final
judgment in any legal proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by applicable Law; and (iv) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from the Chosen Courts. Each of the parties irrevocably consents to the service of process of any
of the aforementioned courts in any such claim, cause of action or proceeding by the mailing of copies thereof by registered or certified
mail or by overnight courier service, postage prepaid, to its address set forth in Section 14. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, CAUSE OF ACTION OR PROCEEDING (WHETHER AT LAW, IN CONTRACT, TORT OR OTHERWISE) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (i) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18, (iii) UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, AND (iv) MAKES THIS WAIVER VOLUNTARILY.
19. Assignment;
Successors. Other than as provided herein, neither this Agreement nor any of the rights, interests or obligations under this Agreement
(including those set forth in Section 2.1(a)) may be assigned or delegated, in whole or in part, by operation of Law or otherwise,
by any party hereto without the prior written consent of the other parties hereto, and any such assignment without such prior written
consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and
be enforceable by, the parties hereto and their respective successors and assigns.
20. Enforcement.
The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would
occur in the event that the parties hereto do not perform the provisions of this Agreement (including any party hereto failing to take
such actions that are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise
breach such provisions. The parties hereto acknowledge and agree that (a) the parties hereto will be entitled, in addition to any
other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief to prevent
breaches (or threatened breaches) of this Agreement or to enforce specifically the terms and provisions hereof, (b) the parties
hereto will not assert that a remedy of monetary damages would provide an adequate remedy for such breach and (c) the right of specific
enforcement is an integral part of the transactions contemplated hereby and without that right, none of the Company, Parent, Topco, Topco
Aggregator or the Stockholder would have entered into this Agreement.
21. Non-Recourse.
This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement, or the negotiation,
execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties hereto and then
only with respect to the specific obligations set forth herein with respect to such party. No past, present or future director, officer,
employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, Affiliate, agent,
attorney or other Representative of any party hereto or any of their successors or permitted assigns or any direct or indirect director,
officer, employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, Affiliate,
agent, attorney, Representative, successor or permitted assign of any of the foregoing, shall have any liability to the Stockholder,
Parent, the Company, Topco or Topco Aggregator for any obligations or liabilities of any party under this Agreement or for any legal
proceeding (whether in tort, contract or otherwise) based on, in respect of or by reason of the transactions contemplated hereby or in
respect of any written or oral representations made or alleged to be made in connection herewith.
22. Severability.
In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such
provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties
hereto further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
23. Counterparts.
This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same
agreement and will become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the
other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Any such counterpart, to the extent
delivered by electronic delivery, will be treated in all manners and respects as an original executed counterpart and will be considered
to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto may raise
the use of an electronic delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of an electronic delivery, as a defense to the formation of a contract, and each party hereto forever waives
any such defense, except to the extent such defense relates to lack of authenticity.
24. Amendment;
Waiver. This Agreement may be amended by the parties hereto, and the terms and conditions hereof may be waived, only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of the party
waiving compliance. No failure or delay on the part of a party in the exercise of any right or remedy hereunder shall impair such right
or power or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall
any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right or power.
25. No
Presumption Against Drafting Party. The Company, Parent and the Stockholder acknowledge that each party to this Agreement has been
represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of
Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has
no application and is expressly waived.
26. No
Agreement until Executed. This Agreement shall not be effective unless and until the Company Board has approved, for purposes of
any applicable anti-takeover laws and regulations, and any applicable provision of the Amended and Restated Certificate of Incorporation
of the Company, the Merger Agreement, this Agreement and the transactions contemplated by the Merger Agreement, including the Mergers.
27. No
Ownership Interest. Except as expressly provided in Section 2 with respect to the Rollover Equity, (a) nothing contained
in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to
any Covered Shares and (b) all ownership and economic benefits of and relating to the Covered Shares shall remain vested in and
belong to the Stockholder.
28. Company
Special Committee Approval. Notwithstanding any provision to the contrary, no amendment or waiver of any provision of this Agreement
shall be made by the Company or the Company Board without first obtaining the approval of the Special Committee. The Special Committee
shall direct enforcement by the Company of any provisions of this Agreement against the Stockholder.
[Signature
pages follow]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
TRIDENT FFP LP |
|
|
|
By: |
Trident FFP GP LLC, as general partner |
|
|
|
|
By: |
/s/ Peter Mundheim |
|
|
Name: Peter Mundheim |
|
|
Title: Vice President and Assistant Secretary |
|
|
|
TRIDENT VI, L.P. |
|
|
|
By: |
Stone Point Capital LLC, as manager |
|
|
|
By: |
/s/ Peter Mundheim |
|
|
Name: Peter Mundheim |
|
|
Title: Managing Director and Counsel |
|
|
|
TRIDENT VI PARALLEL FUND, L.P. |
|
|
|
By: |
Stone Point Capital LLC, as manager |
|
|
|
|
By: |
/s/ Peter Mundheim |
|
|
Name: Peter Mundheim |
|
|
Title: Managing Director and Counsel |
|
|
|
TRIDENT VI DE PARALLEL FUND, L.P. |
|
|
|
By: |
Stone Point Capital LLC, as manager |
|
|
|
|
By: |
/s/ Peter Mundheim |
|
|
Name: Peter Mundheim |
|
|
Title: Managing Director and Counsel |
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
Ferdinand FFP Acquisition, LLC |
|
|
|
By: |
/s/ David Winokur |
|
|
Name: David Winokur |
|
|
Title: President |
|
Ferdinand FFP Ultimate Holdings, LP |
|
|
|
By: |
/s/ David
Winokur |
|
|
Name: David Winokur |
|
|
Title: President |
|
Ferdinand FFP Parent, Inc. |
|
|
|
By: |
/s/ David Winokur |
|
|
Name: David Winokur |
|
|
Title: President |
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
FOCUS FINANCIAL PARTNERS INC. |
|
|
|
By: |
/s/ Ruediger Adolf |
|
|
Name: |
Ruediger Adolf |
|
|
Title: |
Chief Executive Officer |
[Signature Page to Support Agreement]
Exhibit A
Owned Shares
Stockholder | |
Class A
Owned Shares | | |
Class B
Owned Shares | | |
Owned Units | |
Trident FFP LP | |
| - | | |
| 8,250,165 | | |
| 8,250,165 | |
Trident VI, L.P. | |
| 955,755 | | |
| - | | |
| - | |
Trident VI Parallel Fund, L.P. | |
| 6,701,039 | | |
| - | | |
| - | |
Trident VI DE Parallel Fund, L.P. | |
| 142,016 | | |
| - | | |
| - | |
[Exhibit A to Support Agreement]
Exhibit B
Rollover Equity
Stockholder | |
Class A
Rollover Shares | | |
Class B
Rollover Shares | | |
Rollover Units | |
Trident FFP LP | |
| - | | |
| 4,125,083 | | |
| 4,125,083 | |
Trident VI, L.P. | |
| 477,877 | | |
| - | | |
| - | |
Trident VI Parallel Fund, L.P. | |
| 3,350,520 | | |
| - | | |
| - | |
Trident VI DE Parallel Fund, L.P. | |
| 71,008 | | |
| - | | |
| - | |
[Exhibit B to Support Agreement]
Exhibit 10.2
Execution Version
FORM OF TRA
WAIVER AND EXCHANGE AGREEMENT
This TRA Waiver and Exchange
Agreement (the “Waiver Agreement”) is dated as of February [_], 2023, and is by and among Focus Financial Partners
Inc., a Delaware corporation (the “Company”), the undersigned Persons under the heading "Holder" on the
signature pages hereto (collectively, the “Holder”), and Ferdinand FFP Parent, Inc., a Delaware corporation
(“Parent”). Each of the Company, the Holder and Parent are referred to herein, individually, as a “Party”
and, collectively, as the “Parties.”
RECITALS
WHEREAS, the Company, the Holder
and certain other persons named therein are parties to that certain Tax Receivable Agreement, dated as of July 30, 2018 (the “Tax Receivable Agreement”); and
WHEREAS, in connection with
the transactions contemplated by that certain Agreement and Plan of Merger, by and among the Company, Parent, Ferdinand FFP Merger Sub
1, Inc., Ferdinand FFP Merger Sub 2, LLC, dated as of the date hereof (the “Merger Agreement”), the Company and
the Holder desire to terminate the Holder's rights and obligations in respect of the Tax Receivable Agreement, subject to and effective
upon the consummation of the transactions contemplated in the Merger Agreement, in exchange for a TRA Note (as defined below) on the
terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration
of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows:
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Tax Receivable Agreement.
Section 2. Acknowledgment
of Change of Control. The Parties acknowledge and agree that the consummation of the transactions contemplated by the Merger Agreement
shall constitute a Change of Control, which Change of Control shall, at the Company Merger Effective Time (as defined in the Merger Agreement),
accelerate the Company’s obligations under the Tax Receivable Agreement in accordance with Section 4.2 of the Tax Receivable
Agreement.
Section 3. Payment
of Early Termination Amount; TRA Note.
(a) Subject
to and effective upon the consummation of the transactions contemplated in the Merger Agreement, and notwithstanding anything to the
contrary in the Tax Receivable Agreement (including, but not limited to, Section 4.4 and Section 4.5 thereof), the Parties
agree that (i) the aggregate amount of the Early Termination Payment required to be paid by the Company and its Subsidiaries to
the Holder as calculated under the Tax Receivable Agreement (the “Holder Early Termination Amount”) shall be paid
by the Company in connection with the Closing (as defined in the Merger Agreement) in the form of a promissory note issued by the Company
in favor of the Holder, on the terms and conditions attached hereto as Schedule A and such other terms as may be mutually agreed
among the Company, the Holder and Parent, with a principal amount equal to the Holder Early Termination Amount (the “TRA Note”)
and (ii) subject to Section 14, none of the Company or its Subsidiaries, or any successors thereof, shall be required to pay
all or any portion of the Holder Early Termination Amount, or any other amounts pursuant to the Tax Receivable Agreement, in the form
of cash at or in connection with the Closing. For the avoidance of doubt, the Holder Early Termination Amount shall be determined in
accordance with the provisions of the Tax Receivable Agreement and Section 6.17 of the Merger Agreement. The Holder and the Company
irrevocably agree that the issuance of the TRA Note by the Company in favor of the Holder pursuant to the terms hereof shall be in full
satisfaction of the Holder's rights to payment (including any applicable portion of the Early Termination Payment) and obligations under
the Tax Receivable Agreement, and such agreement is final and binding as of the date hereof.
Section 4. Exchange,
Waiver and Release. Subject to Section 14, upon the issuance of the TRA Note to the Holder, (i) the Holder hereby
absolutely, irrevocably and unconditionally terminates, waives and releases all of its rights under the Tax Receivable Agreement, (ii) the
Holder rescinds, annuls, cancels, repeals and eliminates any and all representations, covenants, agreements, obligations, responsibilities
or liabilities of the Company, its Subsidiaries or any of its Affiliates contained in or existing under the Tax Receivable Agreement
to the extent relating to or in favor of the Holder, and (iii) the Company and its Affiliates rescind, annul, cancel, repeal and
eliminate any and all representations, covenants, agreements, obligations, responsibilities or liabilities of the Holder contained in
or existing under the Tax Receivable Agreement to the extent relating to or in favor of the Company, its Subsidiaries or its Affiliates,
in each case, without any continuing liability of the Holder, Company, Parent or any of their respective successors or Affiliates, as
applicable. Subject to Section 14, other than claims in respect of this Agreement or the TRA Note, the Holder hereby absolutely,
irrevocably and unconditionally agrees not to bring any claims, directly or indirectly, against the Company, Parent or any of their respective
successors or Affiliates relating to or in respect of the Tax Receivable Agreement. Notwithstanding the foregoing, the Holder shall retain
any of its rights under the Tax Receivable Agreement related to the determination of the Holder Early Termination Amount.
Section 5. Representations
and Warranties of the Parties. Each Party hereby represents and warrants to the other Parties that:
(a) Power;
Organization; Binding Agreement. Such Party has full power and authority to execute and deliver this Waiver Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by such Party of this Waiver
Agreement, the performance by such Party of its obligations hereunder and the consummation by such Party of the transactions contemplated
hereby have been duly and validly authorized by such Party and no other actions or proceedings on the part of such Party are necessary
to authorize the execution and delivery by such Party of this Waiver Agreement, the performance by such Party of its obligations hereunder
or the consummation by such Party of the transactions contemplated hereby. If such Party is not a natural person, such Party is duly
organized, validly existing and in good standing under the laws of its jurisdiction of formation. This Waiver Agreement has been duly
executed and delivered by such Party, and, assuming this Waiver Agreement constitutes a valid and binding obligation of the other Parties,
constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) No
Conflicts. No filing with, and no permit, authorization, consent, or approval of, any governmental authority or other Person is necessary
for the execution and delivery by such Party of this Waiver Agreement, the performance by such Party of its obligations hereunder, the
termination of the Tax Receivable Agreement with respect to such Holder and the consummation by such Party of the transactions contemplated
hereby. None of the execution and delivery by such Party of this Waiver Agreement, the performance by such Party of its obligations hereunder
or the consummation by such Party of the transactions contemplated hereby will (i) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
commitment, arrangement, understanding or other agreement to which such Party is a party or by which such Party or any of such Party’s
properties or assets may be bound, including any voting agreement or voting trust, (ii) violate any law, rule or regulation
or order applicable to such Party or (iii) violate the constituent or organizational document of such Party.
(c) No
Finder’s Fees. No broker, investment banker, financial advisor, finder, agent or other person is entitled to any broker’s,
finder’s, financial adviser’s or other similar fee or commission with respect to this Waiver Agreement based upon arrangements
made by or on behalf of such Party in its capacity as such.
(e) Reliance
by Parent. In the case of the Holder and the Company, such Party understands and acknowledges that Parent and Merger Subs are entering
into the Merger Agreement in reliance upon such Party’s execution and delivery of this Waiver Agreement. Such Party has been represented
by or had the opportunity to be represented by, independent counsel of its own choosing, and it has had the full right and opportunity
to consult with its attorney and its tax advisor, that to the extent, if any, that it desired, it availed itself of this right and opportunity,
that it or its authorized officers (as the case may be) have carefully read and fully understand this Waiver Agreement and have had it
fully explained to them by counsel (including tax counsel), that it is fully aware of the contents thereof and its meaning, intent and
legal and tax effect, and that it or its authorized officers (as the case may be) is competent to execute this Waiver Agreement and has
executed this Waiver Agreement free from coercion, duress and undue influence.
(f) Absence
of Litigation. As of the date hereof, there is no legal proceeding pending against, or, to the knowledge of such Party, threatened
against such Party or any of its properties or assets that would reasonably be expected to prevent or materially delay or impair the
consummation by such Party of the transactions contemplated by this Waiver Agreement or otherwise materially impair such Party’s
ability to perform its obligations hereunder.
(g) Rights
in Tax Receivable Agreement. In the case of the Holder, the Holder is a party to the Tax Receivable Agreement and, the Holder has
not assigned or otherwise transferred any of its rights or interests pursuant to the Tax Receivable Agreement.
Section 6. Entire
Agreement; Supersedure. This Waiver Agreement constitutes the entire agreement of the Parties in respect of the subject matter hereof
and supersedes all prior contracts or agreements between or among the Parties in respect of such subject matter (including, but not limited
to the Tax Receivable Agreement, except as otherwise set forth herein), whether written or oral.
Section 7. Intended
Tax Treatment.
(a) For
U.S. federal (and applicable state and local) income tax purposes, the Parties intend that, (i) to the extent the Holder has the
right to receive all or any portion of a TRA Note in respect of amounts owed to it under the Tax Receivable Agreement related to an Exchange
of Units that has occurred prior to the Closing, (A) the receipt of the relevant portion of the TRA Note by the Holder shall be
treated as a modification of an existing installment obligation of the Company under the Tax Receivable Agreement that does not give
rise to any gain or loss under Code Section 453B and, unless an election has previously been made, the installment method shall
continue to apply, (B) any payment under the relevant portion of the TRA Note (other than amounts properly accounted for as accrued
or imputed interest) will be treated as a subsequent upward adjustment to the purchase price of the relevant Units and (C) the Company
shall receive an increase in the tax basis of such Units equal to the amount of such TRA Note (other than any portion that is attributable
to accrued or imputed interest), and (ii) to the extent the Holder has the right to receive all or any portion of a TRA Note in
respect of amounts owed to it under the Tax Receivable Agreement related to Units that are exchanged for shares in the Company on the
date of the Closing, (A) the receipt of the relevant portion of the TRA Note by the Holder shall be treated as additional purchase
price paid by the Company for such Units and shall be eligible for installment reporting under Code Section 453, and (B) the
Company shall receive an increase in the tax basis of such Units equal to the amount of such TRA Note (clause (a), the “Intended
Tax Treatment”).
(b) The
Parties agree to file all tax returns consistent with the Intended Tax Treatment unless otherwise required by applicable law or by a
final “determination” within the meaning of Section 1313(a)(1) of the Code. The Parties agree to cooperate in good
faith to structure the issuance of the TRA Note and related transactions in a manner that, to the extent reasonably practicable, gives
effect to the Intended Tax Treatment.
Section 8. Governing
Law. This Waiver Agreement and any claim, cause of action or Action (as defined in the Merger Agreement) (whether at law, in contract
or in tort) that may directly or indirectly be based upon, relate to or arise out of this Waiver Agreement or any transaction contemplated
hereby, or the negotiation, execution or performance hereunder shall be governed by, and construed and enforced 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.
Section 9. Consent
to Jurisdiction. Each of the Parties (i) irrevocably and unconditionally submits to the personal jurisdiction and venue of the
Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of
Chancery of the State of Delaware does not have subject matter jurisdiction, the United States District Court for the District of Delaware
or, if jurisdiction is not then available in the United States District Court for the District of Delaware, then any Delaware state court)
(the “Chosen Courts”), in the event of any claim, Action or proceeding between the Parties (whether in contract, tort
or otherwise) arises out of or relating to this Waiver Agreement or the transactions contemplated hereby, (ii) expressly waives
any claim of lack of personal jurisdiction or improper venue and any claims that such courts are an inconvenient forum with respect to
such a claim, (iii) agrees that it shall not bring any claim, action or proceeding against any other Parties arising out of or relating
to this Waiver Agreement or the transactions contemplated hereby in any court other than the Chosen Courts and that a final judgment
in any legal proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable Law, and (iv) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from the Chosen Courts. Each Party hereby irrevocably consents to the service of process of any
of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail
or by overnight courier service, postage prepaid, to its address set forth in Section 15.
Section 10. Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS WAIVER AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, ACTION OR PROCEEDING (WHETHER IN
CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS WAIVER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, INCLUDING ANY LEGAL ACTION AGAINST ANY FINANCING SOURCE ARISING OUT OF OR RELATED TO THE DEBT FINANCING. EACH PARTY (I) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS WAIVER
AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10, (III) UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (IV) MAKES THIS WAIVER VOLUNTARILY.
Section 11. Severability.
The provisions of this Waiver Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions hereof. If any provision of this Waiver Agreement, or the application of such
provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted
therefor 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 Waiver 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 of such provision, in any other jurisdiction.
Section 12. Further
Assurances. In connection with this Waiver Agreement and the transactions contemplated hereby, each Party shall execute and deliver
all such future instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions
of this Waiver Agreement and the intention of the Parties as expressed herein.
Section 13. Amendment.
Subject to the provisions of applicable Law (as defined in the Merger Agreement), this Waiver Agreement may be amended, modified or waived
if, and only if, such amendment, modification or waiver is in writing and signed, in the case of an amendment or modification by each
of the Company, the Holder and Parent, or in the case of a waiver, by the Party against whom the waiver is to be effective.
Section 14. Effectiveness;
Termination. The waiver set forth in clause (ii) of Section 3(a) of payment of the Holder Early Termination
Amount to the Holder in the form of cash at or in connection with the Closing and the waivers and releases set forth in Section 4
shall become effective upon the occurrence of both: (a) the Closing and (b) the Company issuing the TRA Note in favor of
the Holder and such TRA Note being in full force and effect. This Waiver Agreement, and all rights and obligations of the Parties hereunder,
shall terminate and shall have no further force or effect as of such date and time as the Merger Agreement shall have been validly terminated
pursuant to Article VIII thereof.
Section 15. Notices.
All notices, requests, instructions or other communications or documents to be given or made hereunder by any Party to the other Parties
to this Waiver Agreement shall be in writing and (a) served by personal delivery by hand upon the Party for whom it is intended,
(b) served by an internationally-recognized overnight courier service upon the Party for whom it is intended, (c) delivered
by registered or certified mail, return receipt requested or (d) sent by email:
If to the Company, to:
Focus Financial Partners
Inc.
875 Third Avenue, 28th Floor
New York, NY 10022
Attention: Russell McGranahan
Email: rmcgranahan@focuspartners.com
with a copy (which shall not constitute notice or service
of process):
Vinson & Elkins
L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Attention: Stephen Gill
Email: sgill@velaw.com
with a copy (which shall not constitute notice or service of process) to:
Potter Anderson &
Corroon LLP
1313 North Market Street, 6th
Floor
Wilmington, DE 19801
Attention: Mark A. Morton
Email: mmorton@potteranderson.com
If to Parent to:
c/o Clayton, Dubilier &
Rice, LLC
375 Park Avenue, 18th Floor
New York, NY 10152
Attention: David Winokur
Email: dwinokur@cdr-inc.com
with a copy (which shall not constitute notice or service
of process) to:
Kirkland & Ellis
LLP
601 Lexington Avenue
New York, NY 10022
Attention: David Klein, P.C.;
Rachael Coffey, P.C.
Email: david.klein@kirkland.com;
rachael.coffey@kirkland.com
Kirkland & Ellis
LLP
300 N. LaSalle Street
Chicago, IL 60654
Attention: Richard Campbell,
P.C.; Kevin Mausert, P.C.
Email: rcampbell@kirkland.com;
kmausert@kirkland.com
and
c/o Stone Point Capital LLC
20 Horseneck Lane
Greenwich, CT 06830
Attention: Fayez S. Muhtadie; Peter M. Mundheim
Email: fmuhtadie@stonepoint.com;
pmundheim@stonepoint.com
and
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Elizabeth A. Cooper;
Mark C. Viera
Email: ecooper@stblaw.com; mark.viera@stblaw.com
If to the Holder to:
[●]
[●]
[●]
Attention: [●]
Email: [●]
with a copy (which shall not constitute notice or service
of process) to:
Vinson & Elkins
L.L.P.
845 Texas Avenue, Suite 4700
Houston, TX 77002
Attention: Stephen Gill
Email: sgill@velaw.com
or to such other Person or addressees as has
or have been designated in writing by the Party to receive such notice provided above. Any notice, request, instruction or other communications
or document given as provided above shall be deemed given to the receiving Party (w) upon actual receipt, if delivered personally,
(x) on the next Business Day after deposit with an overnight courier, if sent by an overnight courier, (y) three Business Days
after deposit in the mail, if sent by registered or certified mail or (z) upon confirmation of transmission if sent by email. Copies
to outside counsel are for convenience only and failure to provide a copy to outside counsel does not alter the effectiveness of any
notice, request, instruction or other communication otherwise given in accordance with this Section 15. Rejection or other
refusal to accept, or the inability to deliver because of changed address or other details of which no notice is given, will be deemed
to be receipt of any notice pursuant to this Section 15 as of the date of rejection, refusal or inability to deliver.
Section 16. Binding
Effect. This Waiver Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, permitted
successors, permitted assigns, permitted distributes, and legal representatives. Nothing expressed or mentioned in this Waiver Agreement
is intended or shall be construed to give any Person other than the Parties and Parent and their respective permitted successors and
assigns any legal or equitable right, remedy or claim under, in or in respect of this Waiver Agreement or any provision herein contained.
No Party may assign any of its rights or obligations under this Waiver Agreement without the prior written consent of the other Parties;
provided that, the Company may assign its rights or obligations to Parent or any of its Affiliates but shall remain liable in respect
of such obligations except to the extent performed by Parent or such Affiliate. Notwithstanding anything herein to the contrary, all
obligations of the Company under the TRA Note shall be novated to, and assumed by, Parent at the Closing without further liability or
obligations of the Company or any further consent of Holder.
Section 17. Headings.
The headings contained in this Waiver Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Waiver Agreement.
Section 18. Counterparts.
This Waiver Agreement and any amendments to this Waiver Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement and will become effective
when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all
Parties need not sign the same counterpart. Delivery of an executed counterpart of a signature page to this Waiver Agreement by
facsimile transmission or by email of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Waiver
Agreement.
Section 19. Conflict.
In the event of any conflict between the terms of the Tax Receivable Agreement (other than with respect to the defined terms set forth
therein, which defined terms shall control) and the terms of this Waiver Agreement, the terms of this Waiver Agreement shall control.
[Signature pages follow.]
IN WITNESS WHEREOF, the Parties
have executed this Waiver Agreement as of the date set forth above.
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COMPANY: |
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FOCUS FINANCIAL PARTNERS INC. |
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By: |
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Name: |
Ruediger Adolf |
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Title: |
Chief Executive Officer |
[Signature Page to TRA Waiver and Exchange
Agreement]
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PARENT: |
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FERDINAND FFP PARENT, INC. |
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By: |
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[Signature Page to TRA Waiver and Exchange
Agreement]
[Signature Page to TRA Waiver and Exchange
Agreement]
Schedule A
TRA Note Term Sheet
(See attached)