On behalf of
the board of directors (the “Board of Directors”) of Majesco, we are pleased to enclose this consent solicitation
statement relating to the consent to a proposal to approve the Amended and Restated Agreement and Plan of Merger dated August
8, 2020 (the “Amended and Restated Merger Agreement”) to the original Agreement and Plan of Merger dated July 20,
2020 (the “Original Merger Agreement,” and together with the Amended and Restated Merger Agreement, the “Merger
Agreement”), by and among Majesco, and two entities affiliated with Thoma Bravo, L.P., Magic Intermediate, LLC, a Delaware
limited liability company (“Parent”), and Magic Merger Sub, Inc., a Delaware corporation wholly-owned by Parent
(“Merger Sub”), and the transactions contemplated by the Merger Agreement, including the Merger (as defined below),
which proposal we refer to as the Merger Proposal. Pursuant to the terms of the Merger Agreement, Merger Sub will merge with and
into Majesco (the “Merger”), with Majesco surviving as the surviving corporation and wholly-owned subsidiary of Parent.
If the Merger
is completed, you will be entitled to receive $16.00 in cash, without interest (the “Per Share Merger Consideration”),
subject to any required withholding of Taxes, for each share of common stock that you own (unless you have properly exercised
your dissenter rights). The Per Share Merger Consideration represents a premium of: (i) approximately 111.9% over the volume-weighted
average price per share of Majesco’s common stock over the 30 day trading period prior to and including July 17, 2020,
the last trading day prior to the date on which Majesco entered into the Original Merger Agreement and (ii) approximately
109.4% over the closing price of Majesco’s common stock on July 17, 2020.
Majesco’s
common stock is currently traded on The Nasdaq Global Stock Market (“Nasdaq”) under the ticker symbol “MJCO.”
As a result of the Merger, the Majesco common stock will be delisted from Nasdaq.
The approval
of the Merger Agreement and the transactions contemplated thereby, including the Merger, requires approval by holders of a majority
of the outstanding shares of common stock of Majesco. We are therefore sending the accompanying consent solicitation statement
to holders of our common stock to request that they consider and consent to the Merger Proposal.
The Board of
Directors has unanimously determined that Majesco’s entry into the Merger Agreement and the consummation of the transactions
contemplated thereby are fair to, and in the best interests of, Majesco and its shareholders, and has approved and declared advisable
the Merger Proposal, and recommended that holders of our common stock as of the record date of August 13, 2020 (the “Record
Date”) “CONSENT TO” the Merger Proposal, by executing and returning the written consent furnished with this
consent solicitation statement.
Majesco Limited, which, as of the Record
Date, holds approximately 74.04% of our outstanding common stock, has agreed to, among other things, issue notice through postal
ballot to its members for their approval of the divestment of the shares of Majesco owned by Majesco Limited pursuant to the Merger
and to deliver its written consent to the Merger within one business day following the publication through the stock exchange in
India of the approval by its members of the divestment. Upon receipt of the written consent of Majesco Limited to the Merger, there
will be sufficient consents of shareholders to approve the Merger.
Holders of approximately 36.33% of the outstanding
shares of Majesco Limited have already agreed to vote their shares in the postal ballot to approve the divestment of the shares
of Majesco owned by Majesco Limited pursuant to the Merger, and such voting agreement will remain in place in respect of 50% of
such shares for seven months following any termination of the Merger Agreement that requires payment of a Company Termination
Fee (as defined in the Merger Agreement) to Parent.
Majesco will
not be holding a shareholders’ meeting to consider the Merger Proposal.
The obligations
of the parties to complete the Merger are subject to the satisfaction or waiver of several conditions set forth in the Merger
Agreement, which is included as Annex A to the accompanying consent solicitation statement.
Pursuant to an
Amended and Restated Agreement and Plan of Merger, dated as of August 8, 2020, (as it may be amended from time to time, the “Merger
Agreement”), by and among Majesco, and two entities affiliated with Thoma Bravo, L.P., Magic Intermediate, LLC, a Delaware
limited liability company (“Parent”), and Magic Merger Sub, Inc., a Delaware corporation wholly-owned by Parent
(“Merger Sub”), Merger Sub will merge with and into Majesco (the “Merger”), with Majesco surviving as
the surviving corporation (and wholly-owned subsidiary of Parent), on the terms and subject to the satisfaction or waiver of the
conditions described in the Merger Agreement.
The accompanying
consent solicitation statement is being delivered to you on behalf of the board of directors (the “Board of Directors”)
of Majesco to request that holders of Majesco common stock as of the close of business on the record date of August 13, 2020 (the
“Record Date”) execute and return written consents to a proposal for the approval of the Merger Agreement and the
transactions contemplated thereby, including the Merger, which proposal we refer to as the Merger Proposal. The closing of the
Merger is conditioned on, among other things, consent to the Merger Proposal by holders of a majority of the outstanding shares
of Majesco common stock.
The accompanying
consent solicitation statement describes the Merger and the actions to be taken in connection with the Merger and provides additional
information about the parties involved, the Merger Agreement and the agreements entered into in connection with the Merger. Please
give this information your careful attention. The Merger Agreement is included as Annex A to the accompanying
consent solicitation statement.
The Board of
Directors considered the terms of the Merger Agreement and has unanimously determined that the entry into the Merger Agreement
and the consummation of the transactions contemplated thereby are fair to, and in the best interests of, Majesco and its shareholders
and has approved and declared advisable the Merger Proposal, and recommended that Majesco shareholders entitled to consent approve
the Merger Proposal.
The Board of
Directors recommends that eligible Majesco shareholders execute and deliver a written “CONSENT TO” the Merger Proposal.
If you have any
questions concerning the Merger, the Merger Agreement or the other transactions contemplated thereby or the accompanying consent
solicitation statement, or if you have any questions about how to deliver your written consent, please contact Broadridge Corporate
Issuer Solutions, Inc., our information agent, at shareholder@broadridge.com or toll-free at (888) 789-8409.
Majesco is a
global leader of cloud insurance software solutions for insurance business transformation. With its CloudInsurer® solutions,
Majesco offers cloud-based core insurance platforms, along with distribution management and data and analytics solutions. With
its Digital1st® solutions, Majesco offers a cloud-native, digital engagement and microservices platform-as-a-service
for the entire insurance business and an ecosystem of partners with apps that provide innovative data sources and capabilities.
Majesco’s customers are insurers, managing general agents and other risk providers from the Property & Casualty/General
Insurance, Life, Annuities, Pensions and Group/ Voluntary Benefits insurance segments worldwide. In addition to the United
States, Majesco operates in Canada, Mexico, the United Kingdom, Malaysia, Singapore, Ireland and India.
Magic Intermediate,
LLC was formed on July 16, 2020, solely for the purpose of effecting the Merger, did not engage in any business prior to July 20,
2020, and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those
incident to its formation and pursuant to the Merger Agreement and the transactions contemplated thereby.
Magic Merger Sub,
Inc. is a wholly owned direct subsidiary of Parent that was formed on July 16, 2020, solely for the purpose of effecting the Merger,
did not engage in any business prior to July 20, 2020, and has no, and prior to the Effective Time will have no, assets, liabilities
or obligations of any nature other than those incident to its formation and pursuant to the Merger Agreement and the transactions
contemplated thereby.
Parent and Merger Sub are owned by Thoma
Bravo Discover Fund II, L.P., Thoma Bravo Discover Fund II-A, L.P. and Thoma Bravo Discover Executive Fund II, L.P. (collectively,
the “Thoma Bravo Funds”), and Parent, Merger Sub and the Thoma Bravo Funds are each affiliated with Thoma Bravo, L.P.
(“Thoma Bravo”), the manager of the Thoma Bravo Funds. Thoma Bravo is a leading private equity firm focused on the
software and technology-enabled services sectors. Following the consummation of the Merger, Majesco, as the surviving corporation
in the Merger, will become indirectly owned by the Thoma Bravo Funds.
In connection with the transactions contemplated
by the Merger Agreement, the Thoma Bravo Funds have provided Parent with an equity commitment sufficient to fund the aggregate
purchase price required to be paid at the closing of the Merger. The Thoma Bravo Funds have also unconditionally agreed to guarantee
the obligations of Parent to pay certain termination fees and the expense reimbursement obligations of Parent set forth in the
Merger Agreement. For more information, please see the section of this consent solicitation statement captioned “The Merger—Financing
of the Merger.”
Upon the terms
and subject to the conditions of the Merger Agreement, Merger Sub will merge with and into Majesco and the separate corporate
existence of Merger Sub will cease, with Majesco continuing as the surviving corporation and as a wholly-owned subsidiary of Parent
(the “Surviving Corporation”). As a result of the Merger, the Majesco common stock will cease to be publicly traded
and will be delisted from Nasdaq. In addition, the Majesco common stock will be deregistered under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and Majesco will no longer file periodic reports with the United States
Securities and Exchange Commission (the “SEC”). If the Merger is completed, you will not own any shares of the capital
stock of the Surviving Corporation. The time at which the Merger will become effective will occur upon the filing of certificates
of merger with the Secretary of State of the State of California in accordance with the applicable provisions of the California
General Corporation Law, as amended (the “CGCL”), and with the Secretary of State of the State of Delaware in accordance
with the applicable provisions of the Delaware General Corporation Law (the “DGCL”) (the time of such filings and
the acceptance for record by the Secretary of State of the State of California and the Secretary of State of the State of Delaware,
or such later time as may be agreed in writing by Parent, Merger Sub and Majesco and specified in the certificates of merger,
being referred to herein as the “Effective Time”).
At the Effective Time, each then outstanding
share of Majesco common stock (other than shares of Majesco common stock (1) held by Majesco or any direct or indirect subsidiary
of Majesco, (2) owned by Parent, Merger Sub or any direct or indirect wholly-owned subsidiary of Parent or Merger Sub or (3) owned
by Majesco shareholders who have properly and validly exercised their statutory rights of appraisal in respect of such shares
of Majesco common stock in accordance with the CGCL, collectively, the “Excluded Shares”) will be cancelled and automatically
converted into the right to receive an amount in cash equal to $16.00, without interest thereon (the “Per Share Merger Consideration”),
less any required withholding taxes.
At the Effective Time, or as promptly
as possible thereafter, Parent will deposit (or cause to be deposited) an amount of cash equal to the aggregate Per Share
Merger Consideration with a designated paying agent for payment of each share of Majesco common stock owned by each Majesco
shareholder. For more information, please see the section of this consent solicitation statement captioned “Proposal 1:
The Merger Proposal—Exchange and Payment Procedures.”
After the Merger is completed, you will
have the right to receive the Per Share Merger Consideration, less any required withholding taxes, and you will no longer have
any rights as a shareholder (except that shareholders who properly and validly exercise dissenters’ rights have the right
to receive payment for the fair value of their shares determined pursuant to Chapter 13 of the CGCL). For more information, please
see the section of this consent solicitation statement captioned “The Merger—Dissenters’ Rights of Majesco Shareholders.”
The Merger Agreement provides that at the
Effective Time, each vested and unvested stock option outstanding under the Majesco 2015 Equity Incentive Plan (a “Company
Option”) will be automatically and without any action on the part of the holder thereof, cancelled in exchange for only the
right to receive, on the first payroll date after the Closing Date, an amount in cash, without interest, equal to the product of
(A) the total number of shares of Majesco common stock subject to such Company Option immediately prior to the Effective Time,
multiplied by (B) the excess, if any, of (x) the aggregate Per Share Merger Consideration over (y) the exercise price per share
of Majesco common stock subject to such Company Option (the “Company Option Cash Out Payment”), less applicable Taxes
required to be withheld with respect to such payment.
Each outstanding Company Option which
has an exercise price per share that is greater than or equal to the Per Share Merger Consideration shall automatically be cancelled
at the Effective Time and forfeited for no consideration or payment.
At the Effective Time, each restricted
stock unit outstanding under the Majesco 2015 Equity Incentive Plan (a “Company RSU”) will be automatically and without
any required action on the part of the holder thereof, cancelled in exchange for only the right to receive, on the first payroll
date after the Closing Date an amount in cash, without interest, equal to the product of (i) the number of shares of Majesco common
stock subject to such Company RSU immediately prior to the Effective Time, multiplied by (ii) the aggregate Per Share Merger Consideration
(the “Company RSU Cash Out Payment”), less applicable Taxes required to be withheld with respect to such payment.
The Majesco 2015 Equity Incentive Plan
will terminate at or prior to the Effective Time.
Under the Merger Agreement, Majesco will
take all actions with respect to its Employee Stock Purchase Plan (“ESPP”) such that no participant may increase the
percentage amount of his or her payroll deduction election from that in effect on July 20, 2020 for the current offering period,
and no participant may make separate non-payroll contributions to the ESPP other than as required by applicable Law. No individual
who was not already participating in the ESPP as of July 20, 2020 will be allowed to commence participation in the ESPP after
July 20, 2020. In addition, subject to the consummation of the Merger, the ESPP will be terminated, effective immediately on the
earlier of the Effective Time and September 30, 2020. Immediately prior to the Effective Time, if the Merger occurs before September
30, 2020, any then-outstanding rights under the ESPP will terminate and Majesco will distribute to each ESPP participant all of
his or her accumulated payroll deductions (to the extent not yet applied to the purchase of shares) with respect to the current
offering period ended September 30, 2020. Following the purchase of shares pursuant to the current offering period ended September
30, 2020 (if any), the ESPP will be suspended and no new offering period will be commenced under the ESPP after the earlier of
the Effective Time and September 30, 2020.
In connection
with the Merger, Majesco Limited shall take all actions necessary to accelerate the vesting of all awards under the Employee Stock
Option Scheme of Majesco Limited – Plan 1 (“ESOP”) to employees of Majesco and its subsidiaries, including submitting
amendments to the ESOP required to effectuate such acceleration and vesting to its shareholders for approval in the Postal Ballot
in accordance with applicable law. Following receipt of such approval, Majesco Limited shall satisfy all of its obligations under
the ESOP to the holders of such awards which have validly exercised their rights under such awards as promptly as practicable in
accordance with applicable laws and cancel all awards that require such cancellation under applicable laws.
For U.S. federal
income tax purposes the receipt of cash by each Majesco shareholder that is a U.S. Holder (as defined under the caption, “The
Merger—Material U.S. Federal Income Tax Consequences of the Merger”) generally will result in the recognition of gain
or loss in an amount measured by the difference, if any, between the amount of cash that such U.S. Holder receives in the Merger
and such U.S. Holder’s adjusted tax basis in the shares of Majesco common stock surrendered in the Merger. Backup withholding
taxes may also apply to the cash payments made pursuant to the Merger, unless such U.S. Holder complies with certification procedures
under the backup withholding rules.
A Majesco shareholder
that is a Non-U.S. Holder (as defined under the caption, “The Merger—Material U.S. Federal Income Tax Consequences
of the Merger”) generally will not be subject to U.S. federal income tax with respect to the exchange of Majesco common
stock for cash in connection with the Merger unless such Non-U.S. Holder has certain connections to the United States,
but may be subject to backup withholding tax unless the Non-U.S. Holder complies with certain certification procedures
or otherwise establishes a valid exemption from backup withholding tax.
Majesco shareholders
should read the section of this consent solicitation statement captioned “The Merger—Material U.S. Federal Income
Tax Consequences of the Merger” and should consult their own tax advisors concerning the U.S. federal income tax consequences
relating to the Merger in light of their particular circumstances and any consequences arising under U.S. federal estate, gift
and other non-income tax laws or the laws of any state, local or non-U.S. taxing jurisdiction.
As a shareholder
of Majesco, under California law you have the right to dissent from the Merger and have the appraised fair value of your shares
of Majesco common stock paid to you in cash. The appraised fair value may be more or less than the Per Share Merger Consideration
to be paid for the shares of Majesco common stock in the Merger.
Under California
law, the holders of Majesco common stock will be entitled to dissenters’ appraisal rights in connection with the Merger, provided
they do not “CONSENT TO” the Merger and that they comply with all other applicable statutory procedures for asserting
dissenters’ rights required by Chapter 13 of the CGCL. Thus, if you wish to dissent and you execute and return a written
consent in the accompanying form, you must specify that your shares “DO NOT CONSENT TO” or “ABSTAIN” with
respect to approval of the Merger. If you do not return your written consent then you also may exercise your dissenters’ rights.
Shareholders who exercise their dissenters’ rights by complying with the applicable statutory procedures required by California
law will be entitled to receive payment in cash for the fair value of their shares as determined by Majesco or, in the event that
Majesco and such shareholders cannot agree on the fair value of their shares, in a judicial proceeding. The procedures to be followed
by dissenting shareholders are described in the section of this consent solicitation statement captioned “The Merger—Dissenters’
Rights of Majesco Shareholders.”
If you intend
to exercise dissenters’ rights, you should read the statutes carefully and consult with your own legal counsel. You should also
remember that if you return a signed written consent but fail to provide instructions as to how your shares of Majesco common
stock are to be consented, you will be considered to have consented to the Merger Proposal and you will not be able to assert
dissenters’ rights. Also, if you exercise dissenters’ rights, you may have taxable income as a result, so you should consult with
your own tax advisor if you intend to dissent.
The text of the
provisions of Chapter 13 of the CGCL pertaining to dissenters’ rights is attached to this consent solicitation statement
as Annex C.
Under the Merger
Agreement, the Merger cannot be completed until (1) the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the “HSR Act”), has expired or been terminated, (2) consent of the Reserve Bank of India
has been received, and (3) a No Objection Certificate has been obtained from the Indian tax authorities. For more information,
please see the section of this consent solicitation statement captioned “The Merger—Regulatory Approvals Required
for the Merger.”
Majesco and Thoma
Bravo made the filings required under the HSR Act on July 31, 2020, filed an application for the No Objections Certificate with
the Indian tax authorities on July 21, 2020, and filed an application for consent by the Reserve Bank of India on July 31, 2020.
On August 12,
2020, the U.S. Federal Trade Commission granted early termination of the waiting period under the HSR Act with respect to the
Merger. With early termination granted under the HSR Act, the transaction has now received all applicable antitrust regulatory
approvals.
A number of conditions must be satisfied
before the Merger will be consummated. These include, among others:
The obligation of Parent and Merger Sub
to consummate the Merger is not subject to any financing condition.
Each of Parent, Merger Sub and Majesco
may waive any of the conditions to its respective obligations to consummate the Merger at or prior to the Effective Time and complete
the Merger even though one or more of these conditions have not been met. Neither Parent nor Majesco can give any assurance that
all of the conditions of the Merger will be either satisfied or waived or that the Merger will occur.
We anticipate that the total amount
of funds necessary to complete the Merger and the related transactions, and to pay the fees and expenses required to be paid
at the closing of the Merger by Parent and Merger Sub under the Merger Agreement, will be approximately $742.4 million. This amount
includes funds needed to: (1) pay the Majesco shareholders the amounts due under the Merger Agreement, (2) make payments in
respect of Majesco’s outstanding equity-based awards payable at closing of the Merger pursuant to the Merger Agreement
and (3) pay all costs and expenses of the Merger.
In connection with the financing
of the Merger, the Thoma Bravo Funds and Parent have entered into an equity commitment letter, dated as of July 20, 2020, which
was amended on August 8, 2020 (as amended, the “Equity Commitment Letter”), pursuant to which the Thoma Bravo Funds
have agreed to provide Parent with an equity commitment of up to $728,738,475 which is the amount estimated sufficient to fund
the aggregate Per Share Merger Consideration, the Company RSU Cash Out Payment and the Company Option Cash Out Payment pursuant
to the Merger Agreement.
Majesco has a contractual right to enforce
the foregoing Equity Commitment Letter against the Thoma Bravo Funds, and under the terms of the Merger Agreement, Majesco has
the right to specifically enforce Parent’s obligation to consummate the Merger under certain circumstances.
The Equity Commitment Letter provides,
among other things, that Majesco is an express third party beneficiary thereof with respect to enforcing Parent’s right
to cause the equity commitment under the Equity Commitment Letter by the Thoma Bravo Funds to be funded to Parent in order to
consummate the Merger, if, and only if, the Company has received an order of specific performance against Parent pursuant to the
Merger Agreement to cause the closing of the Merger to occur and to cause Parent to enforce its rights against each of the Thoma
Bravo Funds to perform such fund’s obligations under the Equity Commitment Letter. See the section captioned “Proposal
1: Merger Proposal––Specific Performance” for more information. The Equity Commitment Letter may not be amended
or otherwise modified without the prior written consent of Parent, the Thoma Bravo Funds and Majesco.
Pursuant to the limited guaranty delivered
by the Thoma Bravo Funds in favor of Majesco, dated as of July 20, 2020, which was amended on August 8, 2020 (as amended, the
“Guaranty”), the Thoma Bravo Funds have unconditionally guaranteed to Majesco, subject to the terms and conditions
thereof, the due and punctual observance, performance and discharge of payment of:
We refer to the obligations set forth
in the preceding sentence as the “Guaranteed Obligations.” The obligations of the Thoma Bravo Funds under the Guaranty
are subject to a cap equal to $52,011,693.24.
The affirmative consent of the holders
of a majority of the outstanding shares of Majesco common stock is required to approve the Merger Proposal.
As of August
13, 2020 (the “Record Date”), our directors and executive officers beneficially owned and were entitled to deliver
consents with respect to an aggregate of 398,821 shares of Majesco common stock, representing less than 1% of the shares of Majesco
common stock outstanding as of the Record Date. Our directors and executive officers have informed us that they currently intend
to deliver written consents representing all of their respective shares of Majesco common stock to “CONSENT TO” the
Merger Proposal.
In connection
with the Merger Agreement, Majesco Limited entered into a Support Agreement, dated as of July 20, 2020, which was amended on August
8, 2020 (as amended, the “Support Agreement”) pursuant to which it has agreed, among other things, (i) to issue a notice
(the “Postal Ballot Notice”) through postal ballot (“Postal Ballot”) to its members for their approval
of the divestment of Majesco Limited’s shares of Majesco common stock pursuant to the Merger for the consideration provided
in the Merger Agreement (the “Divestment”) (such approval, the “Limited Shareholder Approval”) no later
than August 12, 2020; (ii) to deliver the written consent of Majesco Limited to the Merger within one business day following the
publication through the stock exchange in India of the Limited Shareholder Approval; (iii) to notify the parties to the Support
Agreement of the result of the votes of its members pursuant to the Postal Ballot Notice immediately and no later than September
13, 2020 and (iv) subject to receipt of the Limited Shareholder Approval, at any meeting of the Majesco shareholders, to cause
its shares to be consented in favor of the Merger Proposal, and against certain transactions including any other Acquisition Proposal.
The Support Agreement and the amendment to the Support Agreement are included as Annex D and Annex E,
respectively, to this consent solicitation statement. As of the Record Date, Majesco Limited owned and was entitled to deliver
consents with respect to 32,111,234 shares of Majesco common stock, representing approximately 74.04% of the shares of Majesco
common stock outstanding as of the Record Date. The Postal Ballot Notice was dated as of August 8, 2020, and
the process of issuing the Postal Ballot Notice to all shareholders of Majesco Limited was completed on August 12, 2020.
In order to deliver
its written consent to the Merger, Majesco Limited must obtain the consent of its members to the Divestment. Approval of the Divestment
requires that at least 75% of the votes cast by the shareholders of Majesco Limited voting pursuant to and in accordance with the
Postal Ballot Notice are cast in favor of the Divestment.
In connection
with the Merger Agreement, Majesco entered into a Promoter Support Agreement on July 20, 2020, which was amended and restated on
August 8, 2020 (as amended and restated, the “Promoter Support Agreement”), with Majesco Limited, Parent and certain
promoters of Majesco Limited and their families named in the Promoter Support Agreement (the “Promoter Group”) pursuant
to which, among other things, upon receipt of the Postal Ballot Notice, each member of the Promoter Group will promptly, but in
no event later than September 11, 2020, in his or its capacity as a shareholder of Majesco Limited, and to the fullest extent of
his or its shareholding or voting rights in Majesco Limited issue his or its unconditional and irrevocable assent to the Divestment.
In the event that approval of the Divestment is sought in a general meeting of Majesco Limited, each member of the Promoter Group
will, in his or its capacity as a shareholder of Majesco Limited, and to the fullest extent of his or its shareholding or voting
rights in Majesco Limited (i) be present, and remain present, at such meeting for the purposes of constituting and maintaining
quorum and (ii) will utilize all his or its voting rights in Majesco Limited to unconditionally and irrevocably approve, adopt
and consent to the Merger and the Divestment. Furthermore, the Promoter Group also agreed that if (i) the board of directors of
Majesco Limited fails to issue the Postal Ballot Notice to all its shareholders seeking the approval of the shareholders to the
Divestment, the Merger and the other Transactions pursuant to the Merger, (ii) fails to convene a general meeting of its shareholders
seeking their approval to the Divestment, the Merger and the other Transactions, (iii) for any reason whatsoever (save for any
adjournments thereof), the general meeting so convened does not take place, the Promoter Group shall, as the legal and beneficial
owner of 36.33% of the total paid-up equity share capital of Majesco Limited requisition, and each Promoter shall individually
procure that the Promoter Group does requisition, the board of directors of Majesco Limited to convene an extraordinary general
meeting in accordance with section 100 of the (Indian) Companies Act, 2013 or issue a postal ballot notice for the approval of
the shareholders of Majesco Limited to the Merger and the transactions contemplated by the Merger Agreement and the Divestment
(such requisition, the “Promoter Requisition”). In the event the board of directors of Majesco Limited does not, within
twenty-one (21) days from the date of receipt of Promoter Requisition, proceed to call a meeting for the consideration of that
matter on a day not later than forty-five (45) days from the date of receipt of the Promoter Requisition, the Promoter Group shall
call and hold the extraordinary general meeting itself within a period of three (3) months from the date of the Promoter Requisition
(such meeting, “Promoter Requisitioned Meeting”), and each Promoter shall (i) be present for the Promoter Requisitioned
Meeting, and remain present throughout the duration of the Promoter Requisitioned Meeting, for the purpose of constituting and
maintaining quorum and (ii) to the fullest extent of his or its shareholding or voting rights in Majesco Limited issue his or its
unconditional and irrevocable assent to the Divestment, the Merger and the transactions contemplated by the Merger Agreement.
The Promoter Group
further agreed that, in the event that the Merger Agreement is terminated in accordance with its terms under circumstances where
a Company Termination Fee is payable to Parent, then the Promoter Support Agreement will only terminate (A) if Parent or its designee,
as applicable, actually receives the Company Termination Fee and (B) only on the date that is seven months following such termination
of the Merger Agreement, provided that the terms and conditions of the Promoter Support Agreement will apply only to 50% of the
shares or voting rights held by the Promoter Group in Majesco Limited, on a pro rata basis, during the term of the Promoter Support
Agreement.
The Board of Directors has unanimously:
(1) resolved that the Merger is fair to, and in the best interests of, Majesco and its shareholders; (2) approved and declared
advisable the execution, delivery and performance of Majesco’s obligations under the Merger Agreement and the other agreements
and documents referred to or contemplated by the Merger Agreement; and (3) directed that the Merger Agreement be submitted to
the Majesco shareholders for approval and recommended that the Majesco shareholders consent to the Merger Proposal, in accordance
with the CGCL.
In evaluating
the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, the Board of Directors consulted
with Majesco’s executive management, outside legal counsel and outside financial advisor. In recommending that the Majesco
shareholders consent in favor of the Merger Proposal, the Board of Directors also considered a number of factors potentially weighing
in favor of the Merger, including those set forth in the section “The Merger—Recommendation of the Majesco Board of
Directors and Reasons for the Merger.”
In its deliberations
concerning the Merger and the other transactions contemplated by the Merger Agreement, the Board of Directors also considered
and balanced against the factors potentially weighing in favor of the Merger a number of uncertainties, risks, restrictions and
other factors potentially weighing against the Merger, including those set forth in the section “The Merger—Recommendation
of the Majesco Board of Directors and Reasons for the Merger.”
On August 7, 2020, Nomura Securities International,
Inc. (“Nomura”) delivered to the Board of Directors an oral opinion, subsequently confirmed by delivery of a written
opinion dated August 7, 2020, to the effect that, as of that date and based on and subject to various assumptions, qualifications,
matters considered and limitations described in its opinion, the $16.00 Per Share Merger Consideration to be received in the Merger
by holders of shares of Majesco common stock (other than the holders of Excluded Shares) was fair, from a financial point of view,
to such shareholders.
The full text of Nomura’s opinion
describes the assumptions made, procedures followed, matters considered and limitations on the review undertaken by Nomura. This
opinion is attached as Annex B and is incorporated into this consent solicitation statement by reference. Nomura’s
opinion was provided for the benefit of the Board of Directors in connection with, and for the purposes of, its evaluation of
the Per Share Merger Consideration. The opinion did not address the relative merits of the Merger as compared to other business
strategies or transactions that might be available with respect to the Company or the Company’s underlying business decision
to effect the Merger. The opinion does not constitute a recommendation to any shareholder as to whether such shareholder should
consent or how such shareholder should otherwise act with respect to the Merger Proposal.
When considering the foregoing recommendation
of the Board of Directors that you consent to the Merger Proposal, Majesco shareholders should be aware that Majesco’s directors,
executive officers and affiliates may have interests in the Merger that are different from, or in addition to, those of Majesco
shareholders more generally. In (1) evaluating and negotiating the Merger Agreement, (2) approving the Merger Agreement and the
Merger and (3) recommending that the Merger Proposal be approved by the Majesco shareholders, the Board of Directors was aware
of and considered these interests, among other matters, to the extent that these interests existed at the time. These interests
include:
In connection with the Merger, Majesco
Limited shall take all actions necessary to accelerate the vesting of all awards under the ESOP to employees of Majesco and its
subsidiaries, including submitting amendments to the ESOP required to effectuate such acceleration and vesting to its shareholders
for approval in the Postal Ballot in accordance with applicable law. Following receipt of such approval, Majesco Limited shall
satisfy all of its obligations under the ESOP to the holders of such awards which have validly exercised their rights under such
awards as promptly as practicable in accordance with applicable laws and cancel all awards that require such cancellation under
applicable laws.
If the Merger Proposal is approved, the
shares of Majesco common stock held by the Majesco directors and executive officers will be treated in the same manner as outstanding
shares of Majesco common stock held by all other shareholders. For more information, see the section of this consent solicitation
statement captioned “The Merger—Interests of Majesco’s Directors and Executive Officers in the Merger.”
Until the earlier
to occur of the valid termination of the Merger Agreement and the Effective Time, Majesco must, and must cause its subsidiaries
and its directors and other identified persons of its senior management team, and must instruct and use its reasonable best efforts
to cause its and its subsidiaries’ other representatives not to:
Notwithstanding the foregoing, however,
at any time prior to the time the written consent of Majesco Limited to the Merger is delivered, in response to an unsolicited
written Acquisition Proposal (if Majesco did not materially violate its obligations above) that the Board of Directors believes
in good faith is bona fide, Majesco and its representatives may contact the person or group making such Acquisition Proposal
to clarify its terms and conditions so as to determine whether this Acquisition Proposal constitutes, or could reasonably be expected
to result in, a Superior Proposal, in addition to certain other communications, discussions or negotiations with such person or
group, subject to limitations described in the section of this consent solicitation statement captioned: “Proposal 1: The
Merger Proposal––The “No Shop” Period—No Solicitation of Other Offers.”
The Merger Agreement may be terminated
at any time prior to the Effective Time in the following ways:
Under specified circumstances, (1) Majesco
will be required to pay Parent a termination fee of $25,505,846.62 or reimburse up to $2,000,000 of Parent’s expenses upon
the termination of the Merger Agreement, and (2) Parent will be required to pay Majesco a termination fee equal to $51,011,693.24.
Please see the sections of this consent
solicitation statement captioned “Proposal 1: The Merger Proposal—Termination of the Merger Agreement” and “Proposal
1: The Merger Proposal—Termination Fee.”
In connection
with the Merger Agreement, Majesco entered into a Letter Agreement dated July 20, 2020, which was amended and restated on August
8, 2020 (as amended and restated, the “Letter Agreement”), with Majesco Limited pursuant to which Majesco Limited agreed
to reimburse, indemnify and hold Majesco harmless from and against any and all costs or disbursements incurred by Majesco in the
event that the Merger Agreement is terminated by the Parent and Merger Sub due to:
If the Merger
Agreement is not approved by the Majesco shareholders because Majesco Limited did not obtain the Limited Shareholder Consent of
the Divestment pursuant to the Postal Ballot process, for example, or if the Merger is not completed for any reason:
Except as otherwise provided in the Merger
Agreement, whether or not the Merger is consummated, Majesco, on the one hand, and Parent and Merger Sub, on the other hand, are
each responsible for all of their respective costs and expenses incurred in connection with the preparation, negotiation, execution
and performance of the Merger Agreement and the transactions contemplated by the Merger Agreement, including all fees and expenses
of their Representatives, which shall be paid by the party incurring such expense.
As of the Record Date,
Majesco Limited owned and was entitled to deliver consents with respect to 32,111,234 shares of Majesco common stock, representing
approximately 74.04% of the shares of Majesco common stock outstanding as of the Record Date. In order to deliver its written consent
to the Merger, Majesco Limited must obtain the consent of its members to the Divestment.
The term of the Promoter Support Agreement will immediately
terminate upon the earliest of (i) the mutual written agreement of the parties, (ii) the consummation of Merger or (iii) the date
of termination of the Merger Agreement (the “Termination Date”); provided, however, in the event that the Merger Agreement
is terminated in accordance with its terms under circumstances where a Company Termination Fee is payable to Parent, then the Promoter
Support Agreement will only terminate (A) if Parent or its designee, as applicable, actually receives the Company Termination Fee
and (B) only on the date that is seven months following such termination of the Merger Agreement, provided that the terms and conditions
of the Promoter Support Agreement will apply only to 50% of the shares or voting rights held by the Promoters in Majesco Limited,
on a pro rata basis, during such seven month period.
Other
Information
The
matters to be considered by the Merger Proposal are of great importance to Majesco shareholders. Accordingly, you are urged to
read and carefully consider the information contained in or incorporated by reference herein and, with respect to your shares
of Majesco common stock, complete, date, sign and promptly return the consent furnished with this consent solicitation statement
by the Consent Deadline.
Assistance
If
you need assistance in completing your consent card or have questions regarding the Merger Proposal, please contact Broadridge,
Majesco’s information agent:
Broadridge
Corporate Issuer Solutions, Inc.
Email:
shareholder@broadridge.com
Phone:
(888) 789-8409
THE
MERGER
This
discussion of the Merger is qualified in its entirety by reference to the Merger Agreement, which is attached to this consent
solicitation statement as Annex A and incorporated into this consent solicitation statement by reference. You should
carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, because this document
contains important information about the Merger and how it affects you.
Parties
Involved in the Merger
Majesco
412 Mount Kemble Avenue, Suite 110C
Morristown,
NJ 07960
(973)
461-5200
Majesco
is a global leader of cloud insurance software solutions for insurance business transformation. With its CloudInsurer® solutions,
Majesco offers cloud-based core insurance platforms, along with distribution management and data and analytics solutions. With
its Digital1st® solutions, Majesco offers a cloud-native, digital engagement and microservices platform-as-a-service
for the entire insurance business and an ecosystem of partners with apps that provide innovative data sources and capabilities.
Majesco’s customers are insurers, managing general agents and other risk providers from the Property & Casualty/General
Insurance, Life, Annuities, Pensions and Group/ Voluntary Benefits insurance segments worldwide. In addition to the United
States, Majesco operates in Canada, Mexico, the United Kingdom, Malaysia, Singapore, Ireland and India.
Majesco’s
home page on the Internet is www.majesco.com. The information provided on Majesco’s website is not part of this consent
solicitation statement and is not incorporated herein by reference. The Majesco common stock is listed on Nasdaq under the ticker
symbol “MJCO.”
Magic Intermediate,
LLC
c/o
Thoma Bravo, L.P.
600
Montgomery Street, 20th Floor
San
Francisco, CA 94111
(415)
263-3660
Magic Intermediate, LLC was formed on July 16, 2020, solely
for the purpose of effecting the Merger, did not engage in any business prior to July 20, 2020, and has no, and prior to the Effective
Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to
the Merger Agreement and the transactions contemplated thereby.
Magic
Merger Sub, Inc.
c/o
Thoma Bravo, L.P.
600
Montgomery Street, 20th Floor
San
Francisco, CA 94111
(415)
263-3660
Magic Merger Sub, Inc. is a wholly owned direct subsidiary of
Parent that was formed on July 16, 2020, solely for the purpose of effecting the Merger, did not engage in any business prior to
July 20, 2020, and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other
than those incident to its formation and pursuant to the Merger Agreement and the transactions contemplated thereby.
Parent
and Merger Sub are owned by the Thoma Bravo Funds, and Parent, Merger Sub and the Thoma Bravo Funds are each affiliated with Thoma
Bravo, the manager of the Thoma Bravo Funds. Thoma Bravo is a leading private equity firm focused on the software and technology-enabled
services sectors. Following the consummation of the Merger, Majesco, as the Surviving Corporation, in the Merger will become indirectly
owned by the Thoma Bravo Funds.
In
connection with the transactions contemplated by the Merger Agreement, the Thoma Bravo Funds have provided Parent with an equity
commitment of up to $728,738,475, which is the amount estimated sufficient to fund the aggregate purchase price required to be
paid at the closing of the Merger, including:
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the
aggregate consideration to which the holders of Majesco common stock are entitled pursuant
to the Merger Agreement,
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the
Company RSU Cash Out Payment pursuant to the Merger Agreement; and
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the
Company Option Cash Out Payment pursuant to the Merger Agreement.
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Pursuant
to the Guaranty, the Thoma Bravo Funds have unconditionally agreed to guarantee certain payment obligations of Parent set forth
in the Merger Agreement, including with respect to a $51,011,693.24 termination fee, enforcement costs of $1,000,000 in connection
to such termination fee and certain expense reimbursements payable to Majesco under certain circumstances. For more information,
please see the section of this consent solicitation statement captioned “The Merger—Financing of the Merger.”
Effect
of the Merger
Upon
the terms and subject to the conditions of the Merger Agreement, Merger Sub will merge with and into Majesco and the separate
corporate existence of Merger Sub will cease, with Majesco continuing as the Surviving Corporation. As a result of the Merger,
Majesco will become a wholly-owned subsidiary of Parent, and the Majesco common stock will no longer be publicly traded and will
be delisted from Nasdaq. In addition, Majesco common stock will be deregistered under the Exchange Act, and we will no longer
file periodic reports with the SEC. If the Merger is completed, you will not own any shares of the capital stock of the Surviving
Corporation.
The
Effective Time will occur upon the filing of certificates of merger with the Secretary of State of the State of California and
the Secretary of State of the State of Delaware (or at such later time as we, Parent and Merger Sub may agree and specify in the
certificates of merger).
Effect
on Majesco if the Merger is Not Completed
If
the Merger Proposal is not approved by the Majesco shareholders for any reason, including because Majesco Limited did not obtain
the Limited Shareholder Consent of the Divestment pursuant to the Postal Ballot process, for example, or if the Merger is not
completed for any other reason, then:
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the
Majesco shareholders will not be entitled to, nor will they receive, any payment for
their respective shares of Majesco common stock pursuant to the Merger Agreement;
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Majesco
will remain an independent public company;
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the
Majesco common stock will continue to be listed and traded on Nasdaq and registered under
the Exchange Act;
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Majesco
will continue to file periodic reports with the SEC;
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we
anticipate that management will operate the business in a manner similar to that in which
it is being operated today;
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the
Majesco shareholders will be subject to similar types of risks and uncertainties as those
to which they are currently subject, including, but not limited to, risks and uncertainties
with respect to Majesco’s business, prospects and results of operations, as such
may be affected by, among other things, the highly competitive industry in which Majesco
operates and economic conditions;
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the
price of the Majesco common stock may decline significantly, and if that were to occur,
it is uncertain when, if ever, the price of the Majesco common stock would return to
the price at which it trades as of the date of this consent solicitation statement;
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the
Board of Directors will continue to evaluate and review Majesco’s business operations,
strategic direction and capitalization, among other things, and will make such changes
as are deemed appropriate, provided that, irrespective of these efforts, it is possible
that no other transaction acceptable to the Board of Directors will be offered or that
Majesco’s business, prospects and results of operations will be adversely impacted;
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under
specified circumstances, Majesco will be required to pay Parent a termination fee of
$25,505,846.62 or reimburse up to $2,000,000 of Parent’s expenses upon the termination
of the Merger Agreement, as described in the section of this consent solicitation statement
captioned “Proposal 1: The Merger Proposal—Termination Fee;”
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Majesco
may not be fully indemnified by Majesco Limited in the event the Merger is not completed
due to a breach by Majesco Limited of its obligations under the Support Agreement; and/or
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Majesco
may be subject to shareholder or other litigation.
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Merger
Consideration
At
the Effective Time, each share of Majesco common stock (other than Excluded Shares, which include, for example, shares of Majesco
common stock owned by Majesco shareholders who have properly and validly exercised their statutory rights of appraisal in accordance
with Chapter 13 of the CGCL) outstanding as of immediately prior to the Effective Time will be cancelled and automatically converted
into the right to receive the Per Share Merger Consideration, less any required withholding taxes.
After
the Merger is completed, you will have the right to receive the Per Share Merger Consideration in respect of each share of Majesco
common stock that you own (less any required withholding taxes), and you will no longer have any rights as a shareholder (except
that shareholders who properly exercise their appraisal rights will have a right to receive payment of the fair value of their
shares as determined pursuant to an appraisal proceeding, as contemplated by California law). For more information, please see
the section of this consent solicitation statement captioned “The Merger—Dissenters’ Rights of Majesco Shareholders.”
Treatment
of Company Options and Company RSU Awards
At the Effective Time, each outstanding vested
and unvested Company Option under the Majesco 2015 Equity Incentive Plan will be automatically and without any action on the part
of the holder thereof cancelled and converted into the right to receive the Company Option Cash Out Payment, less any required
withholding taxes, payable on the first payroll date after the closing date.
Any
outstanding Company Option (whether vested or unvested) with a per share exercise price equal to or greater than the Per Share
Merger Consideration will be automatically cancelled at the Effective Time and forfeited without payment or consideration.
At the Effective Time, each Company RSU outstanding
under the Majesco 2015 Equity Incentive Plan will be automatically and without any action on the part of the holder thereof cancelled
and converted to the right to receive the Company RSU Cash Out Payment, less any required withholding taxes, payable on the first
payroll date after the closing date.
The Majesco 2015 Equity Incentive Plan will
terminate at or prior to the Effective Time.
Treatment of Purchase Rights under the ESPP
Under
the Merger Agreement, Majesco will take all actions with respect to its ESPP such that no participant may increase the percentage
amount of his or her payroll deduction election from that in effect on July 20, 2020 for the current offering period, and no participant
may make separate non-payroll contributions to the ESPP other than as required by applicable Law. No individual who was not already
participating in the ESPP as of July 20, 2020 will be allowed to commence participation in the ESPP after July 20, 2020. In addition,
subject to the consummation of the Merger, the ESPP will be terminated, effective immediately on the earlier of the Effective
Time and September 30, 2020. Immediately prior to the Effective Time, if the Merger occurs before September 30, 2020, any then-outstanding
rights under the ESPP will terminate and Majesco will distribute to each ESPP participant all of his or her accumulated payroll
deductions (to the extent not yet applied to the purchase of shares) with respect to the current offering period ended September
30, 2020. Following the purchase of shares pursuant to the current offering period ended September 30, 2020 (if any), the ESPP
will be suspended and no new offering period will be commenced under the ESPP after the earlier of the Effective Time and September
30, 2020.
Treatment of Awards Under ESOP of Majesco
Limited
In connection with the Merger, Majesco Limited
shall take all actions necessary to accelerate the vesting of all awards under the ESOP to employees of Majesco and its subsidiaries,
including submitting amendments to the ESOP required to effectuate such acceleration and vesting to its shareholders for approval
in the Postal Ballot in accordance with applicable law. Following receipt of such approval, Majesco Limited shall satisfy all of
its obligations under the ESOP to the holders of such awards which have validly exercised their rights under such awards as promptly
as practicable in accordance with applicable laws and cancel all awards that require such cancellation under applicable laws.
Background
of the Merger
As
part of its long-term planning, the Majesco Board of Directors, together with the Company’s management, periodically reviews
and considers a variety of financial and strategic opportunities, potential operational changes and other ways to enhance value
for the Company’s stockholders, taking into account the Company’s performance, competitive dynamics, industry trends
and macroeconomic developments. From time to time, these reviews have included discussions, sometimes with the participation of
outside advisors, as to whether the continued execution of the Company’s strategy as a stand-alone company (including possible
operational and capital structural changes) or the possible sale to, or combination with, a third party offered a better avenue
to enhance value for the Company’s stockholders.
In
September 2016, Majesco had signed a non-disclosure agreement with a financial sponsor (“Sponsor A”) and thereafter
conducted preliminary discussions with Sponsor A from time to time.
On May 9, 2019, Adam Elster, the Chief Executive Officer of
Majesco, and a representative of Thoma Bravo, held an initial discussion regarding a potential transaction.
On June 11, 2019, Mr. Elster and a representative of Sponsor
A met at Sponsor A’s request to discuss Majesco’s business.
On
June 18, 2019, Majesco and Sponsor A signed a new non-disclosure agreement with respect to a potential strategic transaction.
On
June 28, 2019, Mr. Elster held separate calls with representatives from Thoma Bravo and representatives from Sponsor A.
On August 13, 2019, Mr. Elster and representatives
of another financial sponsor (“Sponsor C”) met at Sponsor C’s request to discuss Majesco’s business.
On August 19, 2019, Mr. Elster and representatives of another
financial sponsor (“Sponsor F”) met at Sponsor F’s request to discuss Majesco’s business.
On
August 20, 2019, Mr. Elster and other members of Majesco senior management, and representatives from Sponsor A met to review certain
financial and customer information of Majesco.
On
August 28, 2019, Sponsor A submitted a non-binding proposal to Majesco for a merger transaction with Majesco at a proposed price
of $10.10 per share. Ketan Mehta, Chairman of the Majesco Board of Directors. communicated the non-binding proposal to the board
of directors of Majesco Limited.
On
August 30, 2019, the board of directors of Majesco Limited discussed the non-binding proposal and expressed dissatisfaction with
its financial terms.
On September 6, 2019, Mr. Elster and another
member of Majesco senior management met with a representative of another financial sponsor (“Sponsor G”) at Sponsor
G’s request to discuss Majesco’s business.
On September 17, 2019, the Chairman of
the Majesco Board of Directors and Farid Kazani, Group Chief Financial Officer of the Majesco companies, met with representatives
of Sponsor A to discuss Sponsor A’s proposal as well as share an updated overview of Majesco and its business.
On September 20, 2019, Mr. Elster and representatives of another
financial sponsor (“Sponsor B”) exchanged emails at the initiative of Sponsor B regarding a potential strategic transaction
involving Majesco.
On
September 24, 2019, Mr. Elster and representatives of Sponsor B met to discuss the general operations of the business.
On
September 27, 2019, Mr. Elster and representatives of Sponsor A discussed an improved non-binding proposal for the acquisition
by Sponsor A of Majesco.
On
September 28, 2019, Sponsor A and Majesco had further discussions regarding the valuation of Majesco for a potential acquisition
by Sponsor A.
On
September 30, 2019, Sponsor B signed a non-disclosure agreement with the Company with respect to a potential strategic transaction
with Majesco.
On
October 2, 2019 Majesco Limited signed a non-disclosure agreement with Kotak Investment Advisors Limited (“Kotak”)
in connection with potentially retaining Kotak to act as its financial advisor with respect to potential strategic transactions
for Majesco Limited or its subsidiary Majesco.
On
October 3, 2019, Sponsor C signed a non-disclosure agreement with Majesco with respect to a potential strategic transaction with
Majesco.
On October 4, 2019, Mr. Elster and the Chairman of the Majesco
Board of Directors and representatives from Sponsor A met to discuss an improved non-binding proposal for the acquisition by Sponsor
A of Majesco.
On
October 7, 2019, Sponsor A emailed representatives of Majesco an updated non-binding proposal for a potential transaction with
Majesco at a price of $12.15 per share and a request for exclusivity for 45 days.
On
October 8, 2019, an informal telephonic meeting of the Majesco Board of Directors was held to discuss the updated proposal from
Sponsor A.
Over
the next few days, representatives of Majesco and Sponsor A held several discussions over the duration of the exclusivity period
and the need and duration of a “go shop” process in the transaction.
On
October 14, 2019, Sponsor A submitted an updated proposal with the same price of $12.15 per share but with a 35-day “go
shop” process. The same day, Sponsor A and Majesco executed an exclusivity agreement whereby Sponsor A was granted an exclusive
negotiating window for a potential acquisition of Majesco for a period of 35 days.
On
October 15, 2019, Mr. Kazani and Mr. Elster held a conference call with representatives of Sponsor A to discuss and agree on due
diligence and next steps in the transaction. On the same day Mr. Kazani and Mr. Elster held a conference call with Nomura Securities
International, Inc. (“Nomura”) to discuss potentially retaining Nomura as its United States financial advisor in connection
with a potential strategic transaction for Majesco.
On
October 21, 2019, Majesco executed an engagement letter with Nomura to act as its United States financial advisor in connection
with a potential strategic transaction for the sale of Majesco.
Over
two days on October 24-25, 2019, Mr. Elster and other members of Majesco senior management met with representatives of Sponsor
A to discuss certain business and financial information of Majesco, as well as financial due diligence and particular areas of
diligence focus.
Between
October 30, 2019 and November 22, 2019, regular meetings and conference calls were held between representatives of Majesco and
Sponsor A to discuss various diligence areas and topics covering the business operations of Majesco.
On
October 31, 2019, outside legal counsel to Sponsor A sent an initial draft of the merger documentation to Majesco and its special
legal counsel Sheppard, Mullin, Richter & Hampton LLP (“Sheppard Mullin”).
On
October 31, 2019, the Majesco Board of Directors met and received a presentation by Nomura regarding the merger documentation
and transaction timeline.
On
November 1, 2019, a conference call was held among Mr. Elster, Mr. Kazani and other members of Majesco senior management and Sponsor
A to discuss the status of the transaction.
Between
November 1, 2019 and November 22, 2019, regular conference calls were held to discuss updates on various diligence areas and topics
covering the business operations of Majesco.
On
November 12, 2019, Sheppard Mullin sent to outside legal counsel for Sponsor A a joinder to Majesco’s existing mutual non-disclosure
agreement with InsPro Technologies Corporation (“InsPro”), which Majesco was in the process of acquiring. Sponsor
A executed the joinder on November 13, 2019.
Over the following days, multiple conference calls were held
with representatives Majesco and InsPro and their outside advisors to finalize the merger documentation, diligence and deal issues.
On
November 14, 2019, Majesco informed Sponsor A that discussions with InsPro were not proceeding toward a potential transaction.
On
November 15, 2019, a conference call was held among Mr. Elster, Mr. Kazani and representatives of Sponsor A to discuss the transaction.
On that date, members of the board of directors of Majesco Limited received a presentation by Kotak and Khaitan & Co, Majesco’s
Indian legal counsel (“Khaitan”) on the process, timeline and strategy for the go shop process. Thereafter, a draft
of the merger agreement was sent by Sheppard Mullin to Sponsor A and its outside legal counsel.
On
November 18, 2019, exclusivity with Sponsor A was automatically extended per the terms of the exclusivity agreement between Sponsor
A and Majesco.
On
November 20, 2019, a conference call was held between Mr. Elster and Mr. Kazani and representatives of Sponsor A to discuss the
transaction.
On
November 22, 2019, the Majesco Board of Directors met and representatives of Nomura presented Nomura’s analysis of the proposed
transaction to the Board.
On
November 25, 2019, Mr. Elster presented to the Investment Committee of Sponsor A.
In
the following days, there were multiple exchanges of draft merger documentation and correspondence among Majesco and Sponsor A
and their respective outside legal counsels intended to finalize the terms of the transaction. However, on November 27, 2019,
Sponsor A informed Majesco that it was not going to pursue the transaction. The primary reason given by Sponsor A was the inability
to support the proposed $12.15 price without the benefit of the InsPro acquisition.
On
November 29, 2019, exclusivity with Sponsor A was terminated.
On
or about January 8, 2020, Majesco resumed talks with InsPro concerning Majesco’s acquisition of InsPro.
From
January 8, 2020 through January 14, 2020, representatives of Majesco, InsPro and their respective counsel corresponded telephonically
and via email regarding updates, follow-up questions and additional documentation related to due diligence in connection with
Majesco’s contemplated acquisition of InsPro.
From
January 15, 2020 through January 30, 2020, representatives of Majesco, InsPro and their respective counsel finalized the merger
transaction documents and the parties signed a merger agreement with InsPro on January 30, 2020.
On
March 10, 2020, Mr. Elster and representatives from Sponsor C held conversations regarding a potential strategic transaction.
On
April 1, 2020, Majesco finalized and closed on its merger with InsPro.
On
April 10, 2020, a potential strategic buyer, Bidder D, entered into a non-disclosure agreement with Majesco with respect to a
potential strategic transaction.
During
the months of April and May of 2020, Mr. Elster and Mr. Kazani held a number of discussions with Bidder D regarding a potential
strategic transaction with Majesco.
On May 20, 2020, Mr. Elster and a representative of Thoma Bravo
had a discussion regarding a potential acquisition of Majesco by Thoma Bravo.
On
June 1, 2020, Mr. Elster and representatives of Sponsor A discussed whether Majesco would be interested in resuming negotiations
for a potential acquisition of Majesco by Sponsor A.
On
June 3, 2020, Mr. Elster and Mr. Kazani, representatives from Nomura and representatives of Sponsor A had a call to discuss the
process for a transaction, the information required to complete the transaction as well as the proposed timeline for the transaction.
On
June 5, 2020, Mr. Elster received a due diligence request list from Sponsor A. Also on that day, Mr. Elster and a representative
of Sponsor A exchanged emails discussing certain legal issues in the transaction.
On
June 9, 2020, Mr. Elster and the representative of Sponsor A came to an agreement on certain open legal issues, including on the
treatment of outstanding RSUs and the circumstances under which a termination fee would be payable upon failure of regulatory
approvals in India. On that same day, access to the electronic data site was granted again to Sponsor A.
On
June 10, 2020, Mr. Elster spoke separately with representatives from Bidder D and representatives of Thoma Bravo regarding a potential
acquisition of Majesco by Thoma Bravo.
On
June 12, 2020, Majesco granted access to the electronic data site to Sponsor B and Sponsor C.
On
June 12, 2020, Majesco signed a non-disclosure agreement with Thoma Bravo with respect to a potential strategic transaction and
granted access to the electronic data site to Thoma Bravo.
On
June 16, 2020 Mr. Elster and representatives of Sponsor C held a conference call and Sponsor C submitted a non-binding letter
of intent for an acquisition of Majesco for a proposed purchase price of between $10.00 and $11.00 per share.
Also
on June 16 and June 17, 2020, calls were held among Mr. Elster, Mr. Kazani, representatives from Nomura and representatives of
Sponsor A on due diligence focus areas.
On
June 19, 2020, representatives of Sponsor A, Mr. Kazani, and representatives from Nomura exchanged emails relative to additional
requests on due diligence from Sponsor A. Also on that day, Mr. Elster, representatives of Sponsor B and representatives from
Nomura participated in a due diligence update call.
On June 22, 2020, Sponsor E signed a non-disclosure agreement
with Majesco to further explore a potential strategic transaction with Majesco following preliminary conversations with the Chairman
of the Majesco Board of Directors and Mr. Kazani.
On
June 23, 2020, Mr. Kazani and other members of Majesco management, representatives of Sponsor A and representatives from Nomura
discussed customer due diligence. Also on that day, Sponsor C increased its proposed purchase price for Majesco to a range of
$11.00-11.50 per share.
On
June 24, 2020, Bidder D submitted a non-binding letter of intent for the acquisition of Majesco with a proposed price of $10.50
per share and requesting exclusivity.
On
June 25, 2020, a conference call was held among Mr. Elster, Mr. Kazani and other members of Majesco senior management, representatives
of Thoma Bravo, and representatives from Nomura to discuss due diligence materials to be made available to Thoma Bravo. Also on
that day, Mr. Kazani, representatives of Sponsor A and representatives from Nomura discussed certain financial due diligence matters.
On
June 26, 2020, Mr. Elster, representatives of Thoma Bravo and representatives from Nomura held a conference call to discuss the
transaction structure considered by Thoma Bravo.
On
June 30, 2020, Thoma Bravo submitted a non-binding proposal for an acquisition of Majesco with a proposed price of $12.10 per
share with an anticipated time period to signing of 12 days. Also on that day, Bidder D submitted a revised non-binding offer
to acquire Majesco at a proposed price of $11.25 per share.
On
July 2, 2020, attorneys with Kirkland & Ellis (“K&E”), outside legal counsel to Thoma Bravo, had an initial
call with Sheppard Mullin to discuss the proposed transaction and its structure, including various issues related to approval
by Majesco Limited shareholders and regulatory issues in India.
On
July 3, 2020, a conference call was held among Mr. Kazani, representatives of Majesco Limited, representatives of Sponsor A and
representatives from Nomura to discuss financial due diligence matters.
On
July 6, 2020, Mr. Elster and a representative of Bidder D had a call to discuss Bidder D’s non-binding offer. Also on that
day, representatives from Bidder D were granted access to the electronic data site.
On
July 7, 2020, Sponsor B submitted a non-binding offer to acquire Majesco at a proposed price range of between $11.50 and $12.50
per share. On that day, Mr. Elster and another member of Majesco senior management held separate discussions with representatives
of Sponsor A and of Bidder D.
On
July 8, 2020, Mr. Kazani, a representative of Majesco Limited, representatives of Sponsor A and representatives from Nomura had
a call to discuss financial diligence questions based on information provided to Sponsor A.
On
July 8, 2020, Mr. Elster and other members of Majesco senior management, representatives of Thoma Bravo and representatives from
Nomura held a conference call to review customer diligence.
On
July 9, 2020, representatives of Thoma Bravo held a business and finance diligence call with members of the Majesco management
team.
On
July 9, 2020, Sheppard Mullin provided proposed drafts of the merger documentation to K&E and to Sponsor B. Those drafts included
a draft of the Original Merger Agreement including a “go shop” provision, and a draft support agreement from Majesco
Limited. No support agreement with the Promoter Group was offered.
On July 10, 2020, Mr. Elster and Mr. Kazani held a call with
Sponsor E to discuss a potential acquisition of Majesco by Sponsor E.
Also
on July 10 and July 11, 2020, a number of conference calls were held among Mr. Kazani and other members of the Majesco management
team, representatives of Sheppard Mullin, representatives of Nomura, K&E and other representatives of Thoma Bravo to discuss
legal diligence, accounting diligence and quality of earnings.
On
July 13, 2020, K&E sent revised drafts of the merger documentation to Sheppard Mullin. In the drafts, Thoma Bravo removed
the “go shop” provision and indicated its expectations that the Promoter Group would enter into a support agreement
that would include (1) a requirement to vote their shares of Majesco Limited in favor of the transaction even if the board of
directors of Majesco or Majesco Limited effects a change of recommendation (the “Change of Recommendation Provision”),
(2) survival of the voting covenant for six months following any termination of the Merger Agreement (the “Tail Provision”),
and (3) a provision whereby if the Merger Agreement is terminated and Majesco entered into an agreement for an acquisition proposal
with another party within twelve months following such termination (which transaction is subsequently consummated), then the Promoter
Group would provide Parent with 50% of any upside they receive above the merger consideration (the “Profit Sharing Provision”).
On
July 14, 2020, K&E sent to Sheppard Mullin an initial draft of the Promoter Support Agreement reflecting these provisions.
On July 14, 2020, Mr. Elster, Mr. Kazani, other representatives
of Majesco and Majesco Limited, representatives of Thoma Bravo and representatives from Nomura discussed follow up queries on the
operations of Majesco. Mr. Elster also discussed with Thoma Bravo certain issues under the merger documentation, including the
request for a “go shop” provision.
On
July 16, 2020, Sheppard Mullin sent revised drafts of the merger documentation to K&E and Thoma Bravo, which reinstated the
“go shop” provision and eliminated the Change of Recommendation Provision, the Tail Provision and the Profit Sharing
Provision from the draft Promoter Support Agreement.
Later that day, Thoma Bravo submitted an updated non-binding
proposal to acquire Majesco at a price of $13.10 per share, without a go shop provision, predicated on proceeding immediately to
signing definitive agreements with an anticipated signing date of July 19, 2020. The updated non-binding proposal indicated general
agreement with the merger documentation provided by Sheppard Mullin. The proposal also requested a limited exclusivity until 12:00
p.m. Pacific Time on July 20, 2020 with additional 24 hour extensions available upon consent of Majesco’s Chief Executive
Officer in the event the parties were continuing to negotiate in good faith. The offer was not subject to a financing condition,
and the proposal indicated that the offer would be backed by an equity commitment for the full purchase price.
On
July 17, 2020, the Majesco Board of Directors held a meeting at which were also present members of Majesco senior management and
representatives from Sheppard Mullin and Nomura to review the Thoma Bravo proposal and the status of the other bids submitted
and to compare Thoma Bravo’s proposal thereto and to consider Thoma Bravo’s exclusivity request. After discussion,
the Majesco Board of Directors approved granting exclusivity to Thoma Bravo until 12:00 p.m. Pacific Time on July 20, 2020.
Also
on July 17, 2020, K&E and Sheppard Mullin discussed timing related to the Majesco Limited shareholder meeting and approval
process and K&E sent a draft of the Equity Commitment Letter to Sheppard Mullin.
From
July 17, 2020 to July 19, 2020, senior management of Majesco, Sheppard Mullin and Khaitan worked closely with the representatives
of Thoma Bravo, K&E and Thoma Bravo’s Indian counsel Trilegal to negotiate and finalize all diligence and transaction
documentation.
On July 19, 2020, the Majesco Board of Directors met with members
of Majesco senior management and representatives from Sheppard Mullin and Nomura to discuss the potential transaction with Thoma
Bravo and remaining open issues. On the call, representatives of Sheppard Mullin presented to the Majesco Board of Directors the
material terms of the proposed transaction. The Majesco Board of Directors also discussed obtaining an indemnity from Majesco Limited
regarding the termination fee that could be payable if Majesco Limited breached certain of its covenants in the transaction and
entered into an alternative transaction for Majesco Limited. The representatives from Nomura provided an update to the Majesco
Board of Directors on their valuation analysis of the financial terms of the Merger Agreement.
Following
the meeting of the Majesco Board of Directors, representatives of Majesco, Majesco Limited, Sheppard Mullin and Khaitan &
Co negotiated and finalized a letter agreement with Majesco Limited pursuant to which Majesco Limited agreed to reimburse and
indemnify against any and all costs or disbursements incurred by Majesco in the event that the Merger Agreement is terminated
by Thoma Bravo (i) due to the failure of Majesco Limited to comply with certain obligations regarding its completion of the postal
ballot process in India and (ii) following the execution of the Merger Agreement and prior to the termination of the Merger Agreement
as a result of the breach, a bona fide acquisition proposal has been made for Majesco Limited and (iii) if within twelve months
after such termination, Majesco Limited enters into a definitive transaction agreement with respect to such acquisition proposal.
Majesco Limited declined to indemnify Majesco for the Company Termination Fee that would be payable upon failure of Majesco Limited
to timely deliver its written consent because of the lack of an alternative transaction in that circumstance to produce a source
of funds for the indemnity.
On
July 20, 2020, the board of directors of Majesco Limited approved the Letter Agreement and Majesco Limited’s obligations
under its support agreement. Later that day, the Majesco Board of Directors of Majesco met with members of Majesco senior management
and representatives from Sheppard Mullin and Nomura. On the call, at the request of the Majesco Board of Directors, Nomura delivered
its oral opinion to the Majesco Board of Directors as to the fairness, from a financial point of view, to the holders of Majesco
common stock (other than holders of the Excluded Shares) of the per share merger consideration of $13.10 per share to be paid
pursuant to the Merger Agreement, which opinion was subsequently confirmed in writing, to the effect that, as of July 20, 2020,
and based upon and subject to the assumptions, matters considered, qualifications and limitations set forth therein, the per share
merger consideration of $13.10 per share to be paid pursuant to the Merger Agreement was fair, from a financial point of view,
to such holders. Representatives from Sheppard Mullin also updated the Majesco Board of Directors on the final material terms
of the transaction and the terms of the Majesco Limited Letter Agreement. The Board of Directors deemed that the Thoma Bravo proposal
was in the best interest of the Company. The Majesco Board of Directors then approved the transaction with Thoma Bravo and the
parties executed the Merger Agreement and publicly announced the transaction before market opening in the United States on July
20, 2020.
In
accordance with the terms of the Merger Agreement, shortly after the approval and announcement of the transaction, Mr. Elster
informed Sponsor A that Majesco was ceasing discussions, and representatives from Nomura informed Sponsor B, Sponsor C, Bidder
D and Sponsor E that Majesco was ceasing discussions. Majesco removed access to these parties and their representatives from the
electronic data site.
On
July 23, 2020, Majesco Limited issued ballot notices through a postal process for approval of the Divestment by its members.
On
July 24, 2020, Bidder D submitted an unsolicited non-binding offer to acquire Majesco at a price of $14.50 per share. The offer
was not subject to a financing condition and indicated that the offer would be backed by an equity commitment for the full purchase
price.
On
July 25, 2020, the Majesco Board of Directors met with members of Majesco senior management and representatives from Sheppard
Mullin and Nomura to discuss the offer from Bidder D. In consultation with Nomura and Sheppard Mullin, the Majesco Board of Directors
discussed the offer, Majesco’s rights and responsibilities under the Merger Agreement with respect to the offer, the fiduciary
duties of the Majesco Board of Directors and Majesco’s plan for responding to the offer. The Majesco Board of Directors
also discussed the history of negotiations with Bidder D and competitive concerns around Bidder D gaining access to confidential
information regarding Majesco’s intellectual property and trade secrets. Following discussion, after consultation with Nomura
and Sheppard Mullin, the Majesco Board of Directors determined, among other things, that Bidder D’s offer was bona fide;
that based on the information then available, the offer would reasonably be expected to result in a Superior Proposal under the
Merger Agreement; that Bidder D is a competitor of Majesco and that accordingly, Majesco should implement reasonable protections
for any competitively sensitive information or data provided to Bidder D. For efficiency purposes, the Majesco Board of Directors
also determined to form an ad hoc Negotiating Committee with the authority to clarify the terms of Bidder D’s offer and
potentially to negotiate terms of such offer and/or revised terms from Parent with respect to a potential amendment to the Merger
Agreement. The Majesco Board of Directors appointed Mr. Mehta, Mr. Elster and Earl Gallegos, the Vice Chairman of the Majesco
Board of Directors and lead independent director, to serve on such Negotiating Committee. The Majesco Board of Directors also
instructed Nomura to contact Thoma Bravo to inquire further as to Parent’s intentions with respect to the proposal from
Bidder D.
Later
that afternoon, Nomura had a conversation with representatives from Bidder D and requested Bidder D to execute a waiver of its
existing non-disclosure agreement in order for Majesco to convey Bidder D’s offer to Parent in compliance with the terms
of the Original Merger Agreement. Following receipt of the executed waiver from Bidder D, Nomura on behalf of Majesco, provided
an unredacted copy of Bidder D’s non-binding offer to Parent in the manner required under the Original Merger Agreement.
The
Negotiating Committee met on July 26, 2020 with members of Majesco senior management and representatives from Sheppard Mullin
and Nomura to discuss further Bidder D’s offer. Representatives from Nomura indicated that they had spoken to a representative
from Thoma Bravo, who acknowledged receipt of a copy of Bidder D’s non-binding offer and indicated that Thoma Bravo did
not have any further reaction to such offer at that time.
On
July 26, Bidder D provided a draft of its proposed equity commitment letter.
On July 27, Bidder D provided initial drafts of a merger agreement,
support agreement, promoter support agreement, and limited guaranty to Nomura for Majesco’s and Sheppard Mullin’s review.
The draft merger agreement indicated that Bidder D would pay the Company Termination Fee if the Original Merger Agreement were
terminated in favor of a merger agreement with Bidder D, and that Majesco would need to reimburse such payment in circumstances
where a company termination fee would be due to Bidder D under the merger agreement with Bidder D (the “Termination Fee Reimbursement
Obligation”). The Termination Fee Reimbursement Obligation would have the effect of approximately doubling the termination
fee payable upon Majesco’s termination of such merger agreement with Bidder D in connection with a superior proposal.
Later
that day, the Negotiating Committee met with members of Majesco senior management and representatives from Sheppard Mullin and
Nomura to discuss further Bidder D’s offer. The Negotiating Committee discussed the credibility and viability of Bidder
D’s offer and determined that the offer was credible and should be further explored. The Negotiating Committee then discussed
the diligence with Bidder D and, in particular, the framework for provision of competitively sensitive information. Finally, the
Negotiating Committee discussed the need to explore with Bidder D potential antitrust concerns. The Negotiating Committee then
discussed and approved allowing Bidder D a period of seven days for diligence and finalization/confirmation of their offer, with
an additional three day extension available if negotiations were then proceeding satisfactorily. The Negotiating Committee instructed
Nomura to request from Bidder D new non-disclosure agreements to be entered into with Bidder D that would both conform to the
requirements of the Merger Agreement and protect competitively sensitive information, and to inform Bidder D of the seven day
timeline, with a potential three day extension.
On
July 29, 2020, Sheppard Mullin had an initial call with outside legal counsel to Bidder D, to discuss the merger documentation
and Bidder D’s revisions to the same.
Later
on July 29, 2020, the Negotiating Committee had a call on which were also present members of Majesco senior management and representatives
from Sheppard Mullin and Nomura to discuss further Bidder D’s offer. Representatives of Sheppard Mullin updated the Committee
on their introductory call with counsel for Bidder D and the new non-disclosure agreements. The Negotiating Committee discussed
the diligence process and the importance of protecting the competitively sensitive information of Majesco, including limitations
on the number of firms that would be given access to competitively sensitive information. Sheppard Mullin also updated the Committee
on antitrust concerns around the proposed transaction with Bidder D.
Later
on July 29, 2020, Bidder D executed the new non-disclosure agreements, following which representatives of Bidder D and its advisors
were given access to the electronic data site. Management of Majesco conducted extensive diligence sessions with Bidder D and
its advisors over the course of the following days.
On
July 30, 2020, Sheppard Mullin and counsel for Bidder D discussed information requests related to the parties’ antitrust
analysis.
On
July 31, 2020, the Negotiating Committee had a call on which were also present members of Majesco senior management and representatives
from Sheppard Mullin to discuss further Bidder D’s offer, the antitrust analysis of the transaction, proposed merger documentation
legal terms, diligence and next steps. The Negotiating Committee indicated its desire to maintain the termination fees at the
same levels as those included in the Original Merger Agreement, notwithstanding the increase in the merger consideration, and
remove the Termination Fee Reimbursement Obligation.
On
July 31, 2020, Majesco Limited filed its application for the approval of the Divestment with the Reserve Bank of India. The same
day, each of Majesco and Parent filed an application under the Hart-Scott-Rodino Act, including requesting early termination of
the applicable waiting period.
On
August 1, 2020, Sheppard Mullin sent revised drafts of the merger documentation to counsel for Bidder D that proposed to maintain
the termination fees at the same levels as those included in the Original Merger Agreement, remove the Termination Fee Reimbursement
Obligation, include covenants requiring Bidder D to agree to divest assets if required for antitrust approval, include a termination
fee payable to Majesco upon failure of antitrust approval, and provide for the acceleration and payment at closing of all RSUs.
On
August 1, 2020, Sheppard Mullin and counsel for Bidder D held a call to discuss Sheppard Mullin’s revisions to the merger agreement,
including Majesco’s deletion of Majesco’s obligation to reimburse Bidder D for the Company Termination Fee that Bidder
D would pay on behalf of Majesco as a result of terminating the Original Merger Agreement, in the event a company termination
fee later became payable to Bidder D in certain circumstances.
On
August 2, 2020, the Majesco Board of Directors met with members of Majesco’s senior management and representatives from
Sheppard Mullin and Nomura to discuss further Bidder D’s offer. Representatives from Nomura advised that Bidder D had reaffirmed
its interest in proceeding with a transaction, requested further due diligence calls, and anticipated being ready to sign definitive
agreements by August 8, 2020. Representatives from Nomura further stated that Thoma Bravo had not yet responded substantively
to Bidder D’s proposal. Representatives of Sheppard Mullin advised the Majesco Board of Directors on the process for antitrust
approval in the United States in respect of a transaction with Bidder D, including anticipated timing and related effects on
timing of Closing, the potential for requirements for divestment of certain assets by Bidder D or Majesco and other uncertainties.
Representatives from Sheppard Mullin also updated the Majesco Board of Directors on the status of negotiations with counsel for
Bidder D, including Majesco’s request to remove the Termination Fee Reimbursement Obligation, Majesco’s request for
covenants requiring Bidder D to agree to divest assets if required for antitrust approval, its request for a termination fee payable
to Majesco upon failure to obtain antitrust approval and its request for acceleration and payment at closing of all RSUs. Following
discussion, the Majesco Board of Directors approved delivery of a Proposed Change Notice (as defined in the Original Merger Agreement)
to Parent to be delivered on August 3, 2020, which Proposed Change Notice would (i) inform Parent that the Majesco Board of Directors
may, no earlier than four Business Days after the date of the letter, effect a change in recommendation and terminate the Original
Merger Agreement with Parent to enter into an alternative acquisition agreement with Bidder D and (ii) trigger a four Business
Day match right for Parent. Such notice would include the versions of the merger documentation with Bidder D as further negotiated
by the Negotiating Committee prior to giving such Proposed Change Notice.
On
August 3, 2020, counsel for Bidder D sent revised drafts of the merger documentation to Sheppard Mullin, which included
Bidder D’s willingness to either (1) pay the Company Termination Fee on Majesco’s behalf, but conditioned on
reimbursement of the same if a company termination fee becomes payable to Bidder D in certain circumstances, or (2) not pay
the Company Termination Fee on Majesco’s behalf. Nomura on behalf of the Company, sent the Proposed Change Notice to
Parent along with such revised drafts of the merger documentation received from counsel for Bidder D.
On
August 4, 2020, the Negotiating Committee held a call with senior management of Majesco, representatives from Sheppard Mullin
and representatives from Nomura to discuss the latest terms of the merger documentation proposed by Bidder D. The Negotiating
Committee discussed reimbursement of the Company Termination Fee to Bidder D in the event a company termination fee becomes payable
to Bidder D in certain circumstances and determined it was in Majesco’s best interest to accept this provision in the merger
agreement.
Later
the same day, the Negotiating Committee held a second call to discuss recent discussions with Thoma Bravo and status of discussions
with counsel for Bidder D with respect to antitrust matters.
On
August 4, 2020, representatives from Sheppard Mullin and K&E discussed the Proposed Change Notice. Representatives of K&E
indicated that Parent may be prepared to offer a higher price if Majesco, Majesco Limited and/or the Promoter Group could agree
to additional deal protections. Representatives of K&E proposed a call option on the shares of Majesco Limited held by the
Promoter Group (the “Call Option”) or alternatively the Profit Sharing Provision that had been included in the draft
Promoter Support Agreement form on July 13, 2020, and the Tail Provision that had also been included in such draft. Nomura on
behalf of the Company, sent an additional notice to Parent along with the revised drafts of the merger documentation for a transaction
with Bidder D.
On
August 5, 2020, representatives of Sheppard Mullin and Bidder D’s legal counsel discussed and finalized all remaining issues
under the draft merger documentation with Bidder D.
On
August 5, 2020, representatives of Sheppard Mullin, K&E, Trilegal and Khaitan & Co discussed Parent’s requests for
additional deal protections, including the Call Option, the Profit Sharing Provision and the Tail Provision.
Nomura
sent the latest draft merger agreement with Bidder D to Parent in the manner required under the Original Merger Agreement on August
6, 2020.
On August 6, 2020, a representative of Thoma Bravo communicated
to Mr. Elster that Thoma Bravo was prepared to provide a superior financial offer if the Promoter Group agreed to additional deal
protections including, the Tail Provision and a Call Option on a portion of their equity in Majesco Limited.
Later that day, representatives of Sheppard Mullin and K&E
discussed the proposed deal protections and Sheppard Mullin communicated to K&E that a Tail Provision should cover only a portion
of the shares held by the Promoter Group in Majesco Limited so that it remained possible to facilitate a future acquisition during
the period of the Tail Provision. Sheppard Mullin indicated it believed that the ongoing ballot process in India would need to
be rescinded and a new postal ballot process organized so as to provide full and complete information to the shareholders of Majesco
Limited about the new deal protection terms. K&E indicated it believed that no such new postal ballot process was required
for the new deal terms.
Following
such discussion, K&E sent to Sheppard Mullin revised drafts of an Amended and Restated Merger Agreement, an amendment to the
Support Agreement with Majesco Limited, an amended and restated Promoter Support Agreement, and amendments to the Equity Commitment
Letter and Guaranty. These documents included full acceleration and payment at closing of the RSUs, additional “hell or
high water” antitrust covenants of Parent not present in the Original Merger Agreement, an increase in the match period
for follow-up Proposed Change Notices from three to five Business Days, a Tail Provision on 50% of the shares of the Promoter
Group in Majesco Limited with a nine month duration, a Call Option on 13.49% of the shares of the Promoter Group in Majesco Limited
and continuation of the ongoing postal balloting process in India.
On August 7, 2020, Trilegal and Khaitan & Co. discussed
the deal protections under the amended and restated Promoter Support Agreement.
On August 7, 2020, the Majesco Board of Directors met with members
of Majesco senior management and representatives from Sheppard Mullin and Nomura and discussed the status of discussions with Bidder
D and Thoma Bravo. Mr. Elster then reported that Thoma Bravo had stated that it intended to give an updated proposal a few minutes
before 9 p.m. EST that would be at a materially higher price than Bidder D’s price but that its willingness to do so was
expressly conditioned upon a very short expiration date of such offer and additional deal protections in amended transaction documents
that would include such higher price. The Majesco Board of Directors discussed the additional deal protections included in the
latest drafts submitted by K&E, including the Call Option, the Tail Provision and the change in match period for follow-up
Proposed Change Notices. The Majesco Board of Directors also discussed the need for a new postal ballot in India and the revised
timing for such process, and the legality under Indian law of the proposed Call Option. The Majesco Board of Directors noted that
the Tail Provision would not preclude the Majesco Board of Directors from terminating the Amended and Restated Merger Agreement
to accept a superior proposal made prior to the delivery of the Majesco Limited consent to the Merger or from consummating such
transaction while the Tail Provision was in effect given it application to only 50% of the shares of the Promoter Group. The Board
also discussed the Tail Provision duration and the overlap with the time needed to obtain regulatory approvals.
The
Majesco Board of Directors further noted that only Bidder D had come forth with an acquisition proposal above the $13.10 per share
price in the Original Merger Agreement, and Bidder D, should it be willing to top the price that Parent would pay under the Amended
and Restated Merger Agreement, would have a realistic expectation of additional antitrust scrutiny that would use up a significant
portion of the Tail Period duration. Upon further discussion, the Majesco Board of Directors instructed Nomura to contact Bidder
D, and without breaching confidentiality obligations owed to Parent concerning the status of negotiations with Parent, request
that Bidder D provide executed transaction documents with its best price before 7 p.m. EST.
Throughout the day on August 7, 2020, Sheppard Mullin and Majesco
senior management held further negotiations with K&E and Thoma Bravo, respectively, pursuant to which they negotiated a number
of improvements to the revised transaction documents submitted by Thoma Bravo through K&E, including authorization for a revised
postal ballot process and adjustments to the associated deadlines for completion of such process and delivery of the Majesco Limited
Written Consent, and the removal of both the Call Option and the Profit Sharing Provision. The Tail Provision, however, remained
a request from Thoma Bravo with a nine month period.
Shortly before 7 p.m. EST, Bidder D sent
merger documentation executed by affiliates of Bidder D reaffirming its initial offer price of $14.50 per share.
Shortly before 9 p.m. EST, a representative
of Thoma Bravo contacted the Chairman of the Majesco Board of Directors and indicated that Parent was willing to raise the merger
consideration to $15.25 per share, with an expiration time that evening and conditioned upon the deal protections that remained
in the draft transaction documents (i.e., primarily the Tail Provision) following negotiations through the day, with a Tail Provision
duration of seven months. The Chairman of the Majesco Board of Directors indicated that he did not believe the Majesco Board of
Directors would accept a merger consideration of below $16.00 per share under those conditions. Shortly, thereafter, the representative
of Thoma Bravo indicated that Parent would submit a new proposal with a merger consideration of $16.00 per share, which statement
was followed by a formal written proposal.
At
9 p.m. EST on August 7, 2020, the Majesco Board of Directors met with members of Majesco senior management and representatives
from Sheppard Mullin and Nomura to consider the proposals of Bidder D and Thoma Bravo. Mr. Mehta informed the Majesco Board of
Directors that Parent had agreed to raise the merger consideration to $16.00 per share and to reduce the Tail Provision duration
to seven months. The Majesco Board of Directors considered the additional deal protections that were a condition of Parent’s
$16.00 offer and Buyers D’s response to the request for Bidder D’s best offer. The Majesco Board of Directors also
considered the advantages of Parent’s offer over any possible price improvement from Bidder D with respect to timeline to
close, antitrust regulatory risk, other execution risks and the materially lower effective termination fee of 3.5% of transaction
value in the Parent proposal versus an effective termination fee of approximately double that amount in any future offer from
Bidder D (taking into account the Company Termination Fee that Bidder D would pay on behalf of Majesco). The Majesco Board of
Directors noted in particular that a transaction with Parent could potentially close as early as October 2020 due to the absence
of notable antitrust concerns and the status of the regulatory approval applications already on file in India.
On
the call, at the request of the Majesco Board of Directors, Nomura delivered its oral opinion to the Majesco Board of Directors
as to the fairness, from a financial point of view, to the holders of Majesco common stock (other than holders of the Excluded
Shares) of the Per Share Merger Consideration of $16.00 to be paid pursuant to the Amended and Restated Merger Agreement, which
opinion was subsequently confirmed in writing, to the effect that, as of August 7, 2020, and based upon and subject to the assumptions,
matters considered, qualifications and limitations set forth therein, the Per Share Merger Consideration of $16.00 to be paid
pursuant to the Amended and Restated Merger Agreement was fair, from a financial point of view, to such holders. Representatives
from Sheppard Mullin also updated the Majesco Board of Directors on the final material terms of the transaction. The Majesco Board
of Directors then approved Majesco’s entry into the Amended and Restated Merger Agreement, the amended Support Agreement
and the amended and restated Promoter Support Agreement and expressed its hope that the Promoter Group would agree to the new
provisions in the Promoter Support Agreement.
On
August 8, 2020 (India time), the board of directors of Majesco Limited approved the amended and restated Letter Agreement and
Majesco Limited’s obligations under its amended Support Agreement.
On August 8, 2020, the Promoter Group executed the Promoter
Support Agreement, and the applicable parties executed the Amended and Restated Merger Agreement, the Support Agreement, the Promoter
Support Agreement and the other related transaction documentation and publicly announced the signing of the Amended and Restated
Merger Agreement and other transaction documentation in the United States and India.
On
August 12, 2020, the FTC granted early termination of the waiting period under the HSR Act with respect to the Merger. With early
termination granted under the HSR Act, the transaction has now received all applicable antitrust regulatory approvals.
Recommendation
of the Majesco Board of Directors and Reasons for the Merger
Recommendation
of the Majesco Board of Directors
The
Board of Directors has unanimously: (1) resolved that the Merger is fair to, and in the best interests of, Majesco and its shareholders;
(2) approved and declared advisable the execution, delivery and performance of Majesco’s obligations under the Merger
Agreement and the other agreements and documents referred to or contemplated by the Merger Agreement; and (3) directed that the
Merger Proposal be submitted to the Majesco shareholders and recommended that the Majesco shareholders consent to the Merger Proposal,
in accordance with the CGCL.
The
Board of Directors unanimously recommends that you deliver a written “CONSENT TO” the Merger Proposal.
Reasons
for the Merger
In
evaluating the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, the Board of Directors
consulted with Majesco’s executive management, outside legal counsel and outside financial advisor. In recommending that
the Majesco shareholders consent in favor of the Merger Proposal, the Board of Directors also considered a number of factors potentially
weighing in favor of the Merger, including the following (not necessarily in order of relative importance):
|
|
●
|
the
belief of the Board of Directors, after a review of Majesco’s current and historical
financial condition, results of operations, prospects, business strategy, competitive
position and industry, including the potential impact (which cannot be quantified numerically)
of those factors on the trading price of Majesco common stock, that the value offered
under the Merger Agreement is more favorable to Majesco shareholders than the potential
value that might have resulted from remaining a U.S. public company, considering:
|
|
|
○
|
the
adverse impact on economies around the world and Majesco’s customers of the current
COVID-19 pandemic;
|
|
|
○
|
Majesco’s
ability to achieve increased market penetration for its product and service offerings
and obtain new customers;
|
|
|
○
|
Majesco’s
ability to raise future capital as needed;
|
|
|
○
|
the
growth prospects of the property & casualty and life & annuity insurance industry;
|
|
|
○
|
the
strength and potential of Majesco’s technology platform and its ability to innovate
and anticipate future customer needs;
|
|
|
○
|
Majesco’s
ability to compete successfully against other providers and products;
|
|
|
○
|
data
privacy and cyber security risks;
|
|
|
○
|
technological
disruptions;
|
|
|
○
|
Majesco’s
ability to successfully integrate its acquisitions and identify new acquisitions;
|
|
|
○
|
the
risk of loss of customers or strategic relationships;
|
|
|
○
|
the
success of Majesco’s research and development investments;
|
|
|
○
|
changes
in economic conditions, political conditions and trade protection measures;
|
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|
○
|
regulatory
and tax law changes and immigration risks;
|
|
|
○
|
Majesco’s
ability to obtain, use or successfully integrate third-party licensed technology;
|
|
|
○
|
the
limited trading volume of Majesco common stock in the market;
|
|
|
○
|
the
volatility in trading price of Majesco common stock, which has at times been uncorrelated
with Majesco’s financial performance, and that no recognized U.S. equity research
analysts publish research reports regarding Majesco;
|
|
|
○
|
the
challenges and risks that Majesco has faced, and would likely continue to face, if it
remained an independent company, including competition from much larger firms possessing
greater financial resources and more comprehensive service offerings, changing client
demands and pricing pressures and execution risks involved with the implementation of
management’s key objectives for Majesco;
|
|
|
○
|
the
additional costs and burdens involved with being a public company, and general market
risks;
|
|
|
○
|
the
view of the Board of Directors that Majesco has benefitted from the favorable domestic
and international economic conditions that prevailed in the years between the major economic
downturn of 2008-2009 and the current COVID-19 pandemic, and if Majesco were to remain
an independent, publicly traded company, the value of its common stock would be susceptible
to future changes and uncertainties in domestic and international economic conditions,
including reduced demand for information technology products and services characteristic
of prior economic downturns; and
|
|
|
○
|
the
results of the price discovery activities performed by Nomura prior to Majesco’s entry
into the Original Merger Agreement.
|
|
|
●
|
the relationship of the Per Share Merger Consideration to the trading
price of Majesco common stock, including that the Per Share Merger Consideration constituted a premium of 111.9% over Majesco’s
volume-weighted average closing price during the 30-trading day period ending July 17, 2020, the last trading day prior to the
date on which Majesco entered into the Original Merger Agreement, and the relationship of the Per Share Merger Consideration as
compared to the per share merger consideration of $14.50 offered by Bidder D;
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|
●
|
the
financial analysis presentation of Nomura and the opinion provided to the Board of Directors,
dated August 7, 2020, by Nomura as to the fairness from a financial point of view to
the holders of Majesco’s outstanding common stock (other than holders of the Excluded
Shares) of the $16.00 Per Share Merger Consideration in cash to be paid to such holders
in the Merger pursuant to the Merger Agreement, based upon and subject to the qualifications,
assumptions, matters considered and limitations on the scope of review undertaken by
Nomura as set forth in such opinion, as more fully described below in the section entitled
“Opinion of Nomura Securities International, Inc., Financial Advisor to Majesco”;
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●
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the
certainty of value of the all-cash merger consideration, eliminating long-term business
and execution risk;
|
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|
●
|
the
view of the Board of Directors that the terms of the Merger Agreement would give another
buyer that was willing to make an unsolicited acquisition proposal a reasonable opportunity
to do so;
|
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●
|
the
right of the Board of Directors under the Merger Agreement to respond to a third party
submitting an unsolicited acquisition proposal by providing non-public information subject
to, among other conditions, an acceptable confidentiality agreement, and to engage in
negotiations or substantive discussions with any such person, so long as the Board of
Directors first determines in good faith after consultation with its outside legal counsel
and financial advisor that based on the information then available and after consultation
with its financial advisor that such acquisition proposal either constitutes a Superior
Proposal or would reasonably be expected to result in a Superior Proposal;
|
|
|
●
|
the
right of the Board of Directors, under certain circumstances, to withdraw, withhold,
qualify or modify its recommendation that the Majesco shareholders approve the Merger
Proposal;
|
|
|
●
|
the
right of the Board of Directors to terminate the Merger Agreement in order to enter into
an Alternative Acquisition Agreement (as defined below under the section of this consent
solicitation statement captioned “Proposal 1: The Merger Proposal––The
Board of Directors’ Recommendation; Company Board Recommendation Change”)
that the Board of Directors determines in good faith, after consultation with its outside
financial advisors and outside legal counsel to constitute a Superior Proposal, subject
to certain conditions, provided that Majesco concurrently pays a termination fee to Parent;
|
|
|
●
|
the
other terms of the Merger Agreement, including:
|
|
|
○
|
the
termination fee of 3.5% of equity value, which the Board of Directors deemed to be reasonable
in light of, among other things, the benefits of the Merger to Majesco shareholders,
the likelihood that a fee of such size would not be preclusive or unreasonably restrictive
of other offers and the offer from the Bidder D;
|
|
|
○
|
the
conditions to the closing, including the belief of the Board of Directors, with consultation
with counsel, that, while the closing is subject to certain antitrust and regulatory
approvals, there were not likely to be significant antitrust or regulatory impediments
to the closing, as well as the obligations of the buyer to take actions to obtain such
approvals;
|
|
|
○
|
the
fact that the Merger Agreement is not conditioned on Parent obtaining any outside financing
and Parent has no need for outside financing to complete the transaction; and
|
|
|
○
|
the
fact that the end date of January 20, 2021 under the Merger Agreement on which either
party, subject to certain exceptions, can terminate the Merger Agreement, allows for
sufficient time to consummate the Merger;
|
|
|
●
|
the
belief of the Board of Directors, based on negotiations with Parent, that the price to
be paid by Parent is the highest price per share that Parent was willing to pay and that
the terms and conditions of the Merger Agreement were, in the view of the Board of Directors,
the most favorable to Majesco and the Majesco shareholders to which Parent was willing
to agree;
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|
|
●
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the
availability of dissenter’s rights to Majesco shareholders who comply with specified
procedures under Sections 1300 through 1313 of the CGCL; and
|
|
|
●
|
the
protections given to Majesco in the Letter Agreement, wherein Majesco Limited agrees
to, among other things, reimburse, indemnify and hold Majesco harmless from and against
any and all costs or disbursements incurred by Majesco upon termination of the Merger
Agreement under specified circumstances.
|
In
its deliberations concerning the Merger and the other transactions contemplated by the Merger Agreement, the Board of Directors
also considered and balanced against the factors potentially weighing in favor of the Merger a number of uncertainties, risks,
restrictions and other factors potentially weighing against the Merger, including the following (not necessarily in order of relative
importance):
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|
●
|
Majesco
shareholders would forgo the opportunity to participate in future earnings or growth
of Majesco or the Surviving Corporation in the Merger, or benefit from any future appreciation
in the value of Majesco common stock, including as may result from Majesco’s execution
of its current strategy as a U.S. public company;
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|
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●
|
receipt
of the all-cash Per Share Merger Consideration would be taxable to those Majesco shareholders
that are treated as U.S. holders for U.S. federal income tax purposes and also have tax
implications for shareholders domiciled in India (including Majesco Limited);
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●
|
under
specified circumstances, Majesco may be required to pay fees and expenses in the event
the Merger Agreement is terminated and the effect this could have on Majesco, including:
|
|
|
○
|
the
possibility that the termination fee payable by Majesco to Parent upon the termination
of the Merger Agreement under certain circumstances could discourage other potential
acquirers from making a competing proposal, although the Board of Directors believes
that the termination fee was reasonable in amount and would not unduly deter any other
party that might be interested in acquiring Majesco;
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|
|
○
|
the
possibility that Majesco could be required to pay the termination fee if Majesco Limited
fails to provide its written consent to the Merger after receiving the Limited Shareholder
Approval for the Divestment, and the limited remedies Majesco would have against Majesco
Limited if such termination fee were triggered;
|
|
|
○
|
the
possibility that Majesco could be required to pay Parent’s expenses up to $2,000,000
if the Merger Agreement is terminated under certain circumstances; and
|
|
|
○
|
if
the Merger is not consummated, Majesco will generally be required to pay its own expenses
associated with the Merger Agreement and the transactions contemplated thereby;
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|
|
●
|
the
significant costs involved in connection with entering into and completing the Merger
and the substantial time and effort of management required to consummate the Merger,
which could disrupt Majesco’s business operations;
|
|
|
●
|
the
announcement and pendency of the Merger, or the failure to complete the Merger, may cause
substantial harm to Majesco’s relationships with its employees (including making
it more difficult to attract and retain key personnel and the possible loss of key management
and other personnel), vendors and customers;
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|
|
●
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the
restrictions in the Merger Agreement on Majesco’s ability to actively solicit competing
bids to acquire Majesco;
|
|
|
●
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the
effect that the right afforded to Parent under the Merger Agreement to match acquisition
proposals from third parties may discourage other parties that might otherwise have an
interest in acquiring Majesco;
|
|
|
●
|
the
restrictions on Majesco’s conduct of business prior to completion of the Merger,
which could delay or prevent Majesco from undertaking business opportunities that may
arise or taking other actions with respect to Majesco’s operations during the pendency
of the Merger, whether or not the Merger is completed;
|
|
|
●
|
the
risk that all conditions to the parties’ obligations to consummate the Merger may not
be satisfied or that satisfaction of such conditions may be delayed;
|
|
|
●
|
the
market price of Majesco common stock could be affected by many factors, including: (i) if
the Merger Agreement is terminated, the reason or reasons for such termination and whether
such termination resulted from factors adversely affecting Majesco; (ii) the possibility
that, as a result of the termination of the Merger Agreement, possible acquirers may
consider Majesco to be an unattractive acquisition candidate; and (iii) the possible
sale of Majesco common stock by short-term investors following an announcement that the
Merger Agreement has been terminated;
|
|
|
●
|
certain
of Majesco’s directors and executive officers may have interests in the Merger
that may be deemed to be different from, or in addition to, those of Majesco shareholders;
|
|
|
●
|
litigation
may occur in connection with the Merger and such litigation may increase the costs associated
with the Merger and result in a diversion of management focus; and
|
|
|
●
|
completion
of the Merger would require antitrust clearance in the United States, approval of the
Reserve Bank of India and obtaining a No Objection Certificate from the Indian tax authorities.
|
Opinion
of Nomura Securities International, Inc., Financial Advisor to Majesco
On
August 7, 2020, at a meeting of the Board of Directors held to evaluate the proposed Merger, Nomura delivered to the Board of
Directors an oral opinion, confirmed by delivery of a written opinion dated August 7, 2020, to the effect that, as of that date
and based on and subject to various assumptions, matters considered, qualifications and limitations described in its opinion,
the $16.00 Per Share Merger Consideration to be received in the Merger by holders of Majesco common stock (other than the holders
of Excluded Shares) was fair, from a financial point of view, to such holders.
The
full text of Nomura’s opinion describes the assumptions made, procedures followed, matters considered and limitations on
the review undertaken by Nomura. This opinion is attached as Annex B and is incorporated into this consent solicitation
statement by reference. Holders of Majesco common stock are encouraged to read Nomura’s opinion carefully in its entirety.
Nomura’s opinion was provided for the benefit of the Board of Directors in connection with, and for the purpose of, its
evaluation of the Per Share Merger Consideration. The opinion did not address the relative merits of the Merger as compared to
other business strategies or transactions that might be available with respect to the Company or the Company’s underlying
business decision to effect the Merger. The opinion does not constitute a recommendation to any Majesco shareholder as to whether
to consent or how to otherwise act with respect to the Merger. The following summary of Nomura’s opinion is qualified in
its entirety by reference to the full text of Nomura’s opinion.
In
arriving at its opinion, Nomura, among other things:
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|
●
|
reviewed
certain publicly available business and financial information relating to the Company;
|
|
|
●
|
reviewed
certain internal financial information and other data relating to the business and financial
prospects of the Company that were provided to Nomura by the management of the Company
and not publicly available, including financial forecasts and estimates prepared by management
of the Company up to March 31, 2021;
|
|
|
●
|
conducted
discussions with members of the senior management of the Company concerning the business
and financial prospects of the Company;
|
|
|
●
|
reviewed
publicly available financial and stock market data with respect to certain other companies
Nomura believed to be generally relevant;
|
|
|
●
|
compared
the financial terms of the Merger with the publicly available financial terms of certain
other transactions that Nomura believed to be generally relevant;
|
|
|
●
|
reviewed
current and historical market prices of Majesco common stock;
|
|
|
●
|
reviewed
a draft of the Merger Agreement dated August 6, 2020; and
|
|
|
●
|
conducted
such other financial studies, analyses and investigations, and considered such other
information, as Nomura deemed necessary or appropriate.
|
In
connection with its review, with the consent of the Board of Directors, Nomura did not assume any responsibility for independent
verification of any of the information provided to or reviewed by it for the purpose of its opinion and, with the consent of the
Board of Directors, Nomura relied on such information being complete and accurate in all material respects. In addition, with
the consent of the Board of Directors, Nomura did not make any independent evaluation or appraisal of any of the assets or liabilities
(contingent or otherwise) of the Company, nor was Nomura furnished with any such evaluation or appraisal. Nomura also did not
evaluate, and did not express an opinion as to the impact of the Merger on, the solvency, viability or fair value of the Company
under any state or federal law relating to bankruptcy, insolvency or similar matters or the ability of the Company to pay its
obligations when they become due. With respect to the financial forecasts and estimates referred to above, Nomura assumed, at
the direction of the Board of Directors, that they had been reasonably prepared on a basis reflecting the best currently available
estimates and judgments of the management of the Company as to the future financial performance of the Company. Nomura assumed,
with the Board of Directors’ approval, that the financial forecasts and estimates referred to above will be achieved at
the times and in the amounts projected. Nomura expressed no opinion regarding the fairness of the amount or nature of the compensation
to any of the Company’s officers, directors or employees, or class of such persons, relative to the compensation to the
public shareholders of the Company, in connection with the Merger. Nomura’s opinion is necessarily based on economic, monetary,
market and other conditions as in effect on, and the information available to Nomura as of, the date of its opinion. It should
be understood that subsequent developments may affect Nomura’s opinion.
Although
Nomura’s opinion was approved by its Fairness Opinion Committee, it does not address the relative merits of the Merger as
compared to other business strategies or transactions that might be available to the Company or the Company’s underlying
business decision to effect the Merger. Nomura’s opinion does not constitute a recommendation to any shareholder as to whether
such shareholder should consent or how such shareholder should otherwise act with respect to the Merger Proposal. At the direction
of the Board of Directors, Nomura has not been asked to, nor did Nomura, offer any opinion as to the terms, other than the Per
Share Merger Consideration to the extent expressly specified therein, of the Merger Agreement or the form of the Merger. In rendering
its opinion, Nomura assumed, with the consent of the Board of Directors, that (i) the final executed form of the Merger Agreement
would not differ in any material respect from the draft that Nomura reviewed, (ii) the parties to the Merger Agreement will comply
with all material terms of the Merger Agreement and (iii) the Merger will be consummated in accordance with the terms of the Merger
Agreement without any adverse waiver or amendment of any material term or condition thereof. Nomura also assumed that all governmental,
regulatory or other consents and approvals necessary for the consummation of the Merger would be obtained without any adverse
effect on the Company or the expected benefits of the Merger in any way meaningful to Nomura’s analysis. Nomura is not an
expert with respect to legal, regulatory, tax or accounting matters and Nomura has relied on the assessments made by the Company
and its advisors with respect to such issues.
In
connection with rendering its opinion to the Board of Directors, Nomura performed a variety of financial and comparative analyses
which are summarized below. The following summary is not a complete description of all analyses performed and factors considered
by Nomura in connection with its opinion. The preparation of a financial opinion is a complex process involving subjective judgments
and is not necessarily susceptible to partial analysis or summary description. With respect to the selected companies analysis
and the selected transactions analysis summarized below, no company or transaction used as a comparison was identical to the Company
or the Merger. These analyses necessarily involve complex considerations and judgments concerning financial and operating characteristics
and other factors that could affect the public trading or acquisition values of the companies concerned.
Nomura
believes that its analyses and the summary below must be considered as a whole and that selecting portions of its analyses and
factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative
description of the analyses, could create a misleading or incomplete view of the processes underlying Nomura’s analyses
and opinion. Nomura did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for purposes
of its opinion, but rather arrived at its ultimate opinion based on the results of all analyses undertaken by it and assessed
as a whole.
For
purposes of its analyses, Nomura utilized Company management’s forecasts for the Company up to March 31, 2021. Management
of the Company did not provide any financial forecasts or estimates to Nomura beyond March 31, 2021. Nomura, at the Board of Directors’
direction, did not perform a discounted cash flow analysis. The results of the fairness analysis might have been different had
such financial forecasts and estimates been provided and a discounted cash flow analysis been performed.
Historical
Trading Performance Analysis
Nomura
reviewed the historical trading performance of the Majesco common stock for the 52 weeks prior to July 17, 2020, the last full
trading day before July 20, 2020, the date on which the Original Merger Agreement was signed and announced. Nomura noted that
the low and high trading prices of the Majesco common stock during such period were $4.57 and $10.03 per share, respectively.
Precedent
Transactions Analysis
Nomura
reviewed and analyzed certain publicly available financial information relating to selected publicly announced merger and acquisition
transactions with an aggregate value between $50 million and $1 billion in the information technology services and software industry
(with relevant business offerings in the insurance services and solutions and adjacent sectors), announced between July 2015 to
July 2020. It was Nomura’s professional judgment that transactions of this size during this time frame and involving target
companies in the information technology services and software industry (with relevant business offerings in the insurance services
and solutions and adjacent sectors) were most relevant, for comparative purposes, to the proposed acquisition of the Company.
In performing these analyses, Nomura analyzed certain financial information and transaction multiples relating to the target companies
and compared such information to the corresponding information about the Company.
Nomura
reviewed the following transactions:
|
Target
|
|
Acquirer
|
|
Incentive
Technology Group, LLC
|
|
ICF
International Inc.
|
|
Mobiquity
Inc.
|
|
Hexaware
Technologies Limited
|
|
Symbility
Solutions Inc. (78%)
|
|
CoreLogic,
Inc.
|
|
Cynosure
Inc.
|
|
Zensar
Technologies Inc.
|
|
StoneRiver,
Inc.
|
|
Sapiens
International Corporation N.V.
|
|
ISCS
Inc.
|
|
Guidewire
Software Inc.
|
|
Appirio
Inc.
|
|
Wipro
Limited
|
|
Gilliland
Gold Young Consulting Inc.
|
|
Moody’s
Corp.
|
|
Magnet
360 LLC
|
|
Mindtree
Limited
|
|
Polaris
Consulting & Services Limited
|
|
Virtusa
Corporation
|
|
The
Innovation Group Limited
|
|
Carlyle
Group Inc.
|
|
Designit
AS
|
|
Wipro
Limited
|
For
each of the transactions Nomura calculated and compared the implied enterprise value of each target company as a multiple of the
target company’s revenue and/or earnings before interest, taxes, depreciation and amortization (“EBITDA”), in
each case, based on the prior twelve months of the latest available public filings as of the time of announcement of the relevant
transaction. Based on the analysis of such metric for each transaction noted above, Nomura selected a representative range of
multiples for each of revenue and EBITDA based on the median precedent transaction multiple, adjusted by 20% in each direction
(as set forth in the table below), and applied this range of multiples to the Company’s reported revenue and/or adjusted
EBITDA for the fiscal year ended March 31, 2020, as set forth in the Company’s Annual Report on Form 10-K filed with the
SEC on July 8, 2020, the latest available periodic report of the Company. Where available, Nomura used the adjusted EBITDA of
the relevant target company for its analysis of the precedent transactions. Adjusted EBITDA for such targets may have been calculated
differently. Based on these calculations, this analysis implied value ranges as shown on the table below:
|
Metric
|
|
Median Multiple
|
|
Selected Range of Multiples
|
|
Implied Per Share Value of Majesco Common Stock
|
|
Enterprise Value / Revenue
|
|
2.7x
|
|
2.2x – 3.3x
|
|
$7.81 – $11.23
|
|
Enterprise Value / EBITDA
|
|
11.8x
|
|
9.5x – 14.2x
|
|
$4.54 – $6.44
|
No
company or transaction utilized in the selected transactions analysis is identical to the Company or the Merger. In evaluating
the selected transactions, Nomura made judgments and assumptions with regard to general business, market and financial conditions
and other matters, many of which are beyond the control of the Company, such as the impact of competition on the business of the
Company or the industry generally, industry growth and the absence of any adverse material change in the financial condition of
the Company or the industry or in the financial markets in general, which could affect the public trading value of the companies
and the aggregate value of the transactions to which they are being compared. Mathematical analysis, such as determining the arithmetic
mean or median, or the high or low, is not in itself a meaningful method of using selected company data.
Comparable
Companies Analysis
Nomura
reviewed and analyzed certain publicly available financial information, valuation multiples and market trading data relating to
the following publicly traded companies with operations in the information technology services and software industry, with a meaningful
portion of insurance / financial services revenue, which is the industry in which the Company operates:
|
|
●
|
Guidewire
Software Inc.
|
|
|
●
|
ExlService
Holdings, Inc.
|
|
|
●
|
Sapiens
International Corporation N.V.
|
|
|
●
|
FINEOS
Corporation Holdings PLC
|
Although
none of the companies listed above are directly comparable to the Company, the companies were selected by Nomura for this analysis
because they are publicly traded companies with operations and/or other criteria, such as lines of business, markets, business
risks and a size and scale of business, which Nomura considered similar to the Company for purposes of analysis.
Nomura
reviewed the enterprise values of these companies (calculated as (a) market capitalization, based on reported fully-diluted common
shares outstanding and closing stock prices on August 7, 2020, plus (b) debt outstanding, preferred stock and minority interest,
less (c) cash and cash equivalents) as multiples of the estimated one fiscal year forward (calendarized for the Company’s
March 31 fiscal year-end) EBITDA, as adjusted for certain items.
Nomura
then applied a range of selected multiples (based on the median comparable company multiples, adjusted by 20% in each direction)
of estimated one fiscal year forward EBITDA derived from the selected comparable companies to the Company’s fiscal year
ending March 31, 2021 EBITDA in two scenarios: a business-as-usual scenario and a risk-adjusted scenario that included provisions
made by the Company for certain business risks including the impact of COVID-19, its life and annuity business not accelerating,
and technology infrastructure outages. Financial data for the Company was based on public filings and forecasts prepared by the
Company’s management up to March 31, 2021. Financial data for the selected companies was based on public filings and other
publicly available information, including from FactSet Research Systems.
The
table below illustrates the representative ranges of multiples selected by Nomura based on the above analysis and the implied
value ranges:
|
Metric
|
|
Median Multiple
|
|
Selected Range of Multiples
|
|
Implied Per Share Value of Majesco Common Stock
|
|
FY 2021E Enterprise Value / Revenue
|
|
2.6x
|
|
2.1x – 3.2x
|
|
$8.93 – $12.91
|
|
FY 2021E Enterprise Value / EBITDA
|
|
14.0x
|
|
11.2x – 16.8x
|
|
$8.15 – $11.74
|
|
FY 2021E Enterprise Value / EBITDA with Risk Contingency
|
|
14.0x
|
|
11.2x – 16.8x
|
|
$7.62 – $10.94
|
No
company included in the selected company analysis is identical to the Company. In evaluating the selected companies, Nomura made
judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and
other matters. Many of these matters are beyond the control of the Company, such as the impact of competition on the business
of the Company and the industry in general, industry growth and the absence of any material adverse change in the financial condition
and prospects of the Company or the industry or in the financial markets in general. Mathematical analysis, such as determining
the arithmetic mean or median, or the high or low, is not in itself a meaningful method of using selected company data.
Premiums
Paid Analysis
Nomura
performed an illustrative premiums paid analysis based on the premiums paid, where applicable, in selected transactions involving
the acquisition of greater than 50% of the equity in a U.S. target, with a transaction value between $300 million and $700 million
and all-cash merger consideration, announced since August 2016, based on data sourced from Dealogic Cortex as of August 7, 2020.
The analysis excluded outlier transactions where the premium was either negative or greater than 150%.
Nomura
then applied a range of premiums from 23% to 34% (based on the median premium to 1-month prior share price of the transactions
referenced above of 28.5%, adjusted by 20% of such median premium in each direction) to the Company’s closing price per
share as of June 17, 2020, resulting in an implied price per share range for shares of the Company’s Common Stock of $8.75
to $9.57.
Miscellaneous
Nomura
calculated the volume-weighted average prices over various time periods and noted the closing stock prices on selected dates prior
to and including July 17, 2020, the last full trading day before July 20, 2020, the date on which the Original Merger Agreement
was signed and announced. This analysis, which was presented to the Board of Directors for informational purposes and was not
considered part of Nomura’s financial analyses with respect to its opinion, indicated that the Per Share Merger Consideration
represented a premium of:
|
|
●
|
111.9%
based on the volume-weighted average price per share of $7.55 for the 30 days ended July
17, 2020;
|
|
|
●
|
120.1%
based on the volume-weighted average price per share of $7.27 for the 60 days ended July
17, 2020;
|
|
|
●
|
124.4%
based on the closing price per share of $7.13 on June 17, 2020, the date that was 30
days prior to July 17, 2020; and
|
|
|
●
|
151.6%
based on the closing price per share of $6.36 on May 18, 2020, the date that was 60 days
prior to July 17, 2020.
|
Nomura
also presented to the Board of Directors a summary of non-binding proposals that had been received by the Company as of August
7, 2020 for informational purposes. This summary was not considered part of Nomura’s financial analyses with respect to
its opinion.
Nomura’s
opinion and its presentation to the Board of Directors were one of many factors taken into consideration by the Board of Directors
in deciding to approve the Merger Agreement. Consequently, the analyses as described above should not be viewed as determinative
of the opinion of the Board of Directors with respect to the Per Share Merger Consideration or of whether the Board would have
been willing to agree to different merger terms. The Per Share Merger Consideration and other terms of the Merger were determined
through arm’s-length negotiations between the Company and Parent and were approved by the Board of Directors. Nomura did
not recommend any specific merger consideration to the Company.
In
connection with the financial advisory services that Nomura has provided in connection with the Merger, the Company has agreed
to pay Nomura the following fees: (i) $1 million payable upon completion of the work required for Nomura to render its opinion
and (ii) approximately $6.29 million payable upon consummation of the Merger. In addition, the Company has agreed to reimburse
Nomura for its reasonable expenses, including fees, disbursements and other charges of counsel, and to indemnify Nomura against
certain liabilities relating to, or arising out of, its engagement.
During
the past two years, (i) Majesco has not engaged Nomura to provide, and Nomura has not provided, investment banking, financial
advisory or other financial services to Majesco unrelated to the Merger for which Majesco pays or expects to pay fees to Nomura
and (ii) Nomura and its affiliates have provided, and may in the future provide, investment banking services and other financial
services to Parent or its affiliates unrelated to the Merger for which Nomura and its affiliates have received, or may receive,
compensation.
Nomura
and its affiliates are involved in a wide range of commercial banking, investment banking and other activities (including investment
management, corporate finance and securities issuing, trading and research). In the ordinary course of business, Nomura, its subsidiaries,
branches and affiliates may trade the securities of the Company (and of entities with which the Company may be considering entering
into a potential transaction or business relationship) for its own account and for the accounts of customers, and may at any time
hold a long or short position in such securities.
The
Board of Directors selected Nomura as its financial advisor in connection with the Merger because Nomura is an internationally
recognized investment banking firm with substantial experience in similar transactions and because of Nomura’s familiarity
with the Company and its business. Nomura is regularly engaged in the valuation of businesses and their securities in connection
with mergers and acquisitions, leveraged buyouts, negotiated underwritings, private placements and other transactions.
Management
Projections
Majesco does not, as a matter of course, publicly disclose long-term
forecasts or projections as to future performance, earnings or other results due to the inherent unpredictability of the underlying
long-term assumptions, estimates and projections. However, Majesco is including a summary of certain previously nonpublic, unaudited
prospective financial information prepared by its management for the fiscal year ending March 31, 2021 in order to provide Majesco
shareholders with access to information that was made available to the Board of Directors in connection with its evaluation of
the Merger and the Per Share Merger Consideration. For purposes of this consent solicitation statement, we refer to these projections
as the “Projections.” The Projections were made available to Nomura in connection with the rendering of Nomura’s
opinion to the Board of Directors.
|
|
|
(dollars in millions)
|
|
|
|
|
Q1
|
|
|
Q2
|
|
|
Q3
|
|
|
Q4
|
|
|
Total
|
|
|
Revenue
|
|
$
|
40.1
|
|
|
$
|
42.0
|
|
|
$
|
46.5
|
|
|
$
|
47.3
|
|
|
$
|
175.9
|
|
|
Cost of Revenue
|
|
|
19.7
|
|
|
|
20.2
|
|
|
|
20.2
|
|
|
|
20.2
|
|
|
|
80.3
|
|
|
Gross Profit
|
|
|
20.4
|
|
|
|
21.8
|
|
|
|
26.2
|
|
|
|
27.1
|
|
|
|
95.5
|
|
|
R&D Expenses
|
|
|
4.2
|
|
|
|
4.3
|
|
|
|
4.3
|
|
|
|
4.3
|
|
|
|
17.1
|
|
|
SGA Expenses
|
|
|
10.7
|
|
|
|
11.4
|
|
|
|
13.6
|
|
|
|
12.9
|
|
|
|
48.6
|
|
|
Total Operating Expense
|
|
|
14.9
|
|
|
|
15.7
|
|
|
|
17.9
|
|
|
|
17.2
|
|
|
|
65.7
|
|
|
Adjusted EBITDA
|
|
|
5.5
|
|
|
|
6.1
|
|
|
|
8.3
|
|
|
|
9.9
|
|
|
|
29.8
|
|
|
Risk Contingency
|
|
|
0.5
|
|
|
|
0.5
|
|
|
|
0.6
|
|
|
|
0.6
|
|
|
|
2.2
|
|
|
Adjusted EBITDA with Risk Contingency
|
|
|
5.0
|
|
|
|
5.6
|
|
|
|
7.7
|
|
|
|
9.3
|
|
|
|
27.6
|
|
Adjusted EBITDA is a non-GAAP (as defined
below) financial measure and is earnings before interest, tax, depreciation and amortization and excludes stock-based compensation,
a reversal of accrual for contingent liabilities and merger and acquisition expenses. The Risk Contingency line item includes
certain provisions made by Majesco for the potential impact of COVID-19, technology infrastructure outages and the life &
annuity business not accelerating.
The
Projections were developed by Majesco management on a standalone basis without giving effect to the Merger and the other transactions
contemplated by the Merger Agreement, or any changes to Majesco’s operations or strategy that may be implemented after the
consummation of the Merger, including any costs incurred in connection with the Merger and the other transactions contemplated
by the Merger Agreement. Furthermore, the Projections do not take into account the effect of any failure of the Merger or other
transactions contemplated by the Merger Agreement to be completed and should not be viewed as accurate or continuing in that context.
In the view of Majesco management, the Projections have been reasonably prepared by Majesco management on bases reflecting the
best currently available estimates and judgments of Majesco management of the future financial performance of Majesco and other
matters covered thereby.
Although
the Projections are presented with numerical specificity, they were based on numerous variables and assumptions made by Majesco
management with respect to industry performance, general business, economic, regulatory, market and financial conditions and other
future events, as well as matters specific to Majesco’s business, all of which are difficult or impossible to predict accurately
and many of which are beyond Majesco’s control. The Projections constitute forward-looking information and are subject to
many risks and uncertainties that could cause actual results to differ materially from the results forecasted in the Projections,
including, but not limited to, Majesco’s performance, industry performance, general business and economic conditions, customer
requirements, staffing levels, competition, adverse changes in applicable laws, regulations or rules, and the various risks set
forth in Majesco’s reports filed with the SEC. There can be no assurance that the Projections will be realized or that actual
results will not be significantly higher or lower than forecasted. In addition, the Projections will be affected by Majesco’s
ability to achieve strategic goals, objectives and targets over the applicable period. The Projections reflect assumptions as
to certain business decisions that are subject to change and cannot, therefore, be considered a guarantee of future operating
results, and this information should not be relied on as such. The inclusion of the Projections should not be regarded as an indication
that Majesco, Nomura, their respective officers, directors, affiliates, advisors, or other representatives or anyone who received
this information then considered, or now considers, them a reliable prediction of future events, and this information should not
be relied upon as such. The inclusion of the Projections in this consent solicitation statement should not be regarded as an indication
that the Projections will be necessarily predictive of actual future events. No representation is made by Majesco or any other
person regarding the Projections or Majesco’s ultimate performance compared to such information. The Projections should
be evaluated, if at all, in conjunction with the historical financial statements and other information about Majesco contained
in Majesco’s public filings with the SEC. For more information, please see the section of this consent solicitation statement
captioned “Where You Can Find More Information.” In light of the foregoing factors, and the uncertainties inherent
in the Projections, Majesco shareholders are cautioned not to place undue, if any, reliance on the Projections.
The
Projections were not prepared with a view toward public disclosure or with a view toward complying with the published guidelines
of the SEC regarding projections or accounting principles generally accepted in the United States (“GAAP”), or the
guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information.
The non-GAAP financial measures used in the Projections were relied upon by Nomura for purposes of its opinion and by the Board
of Directors in connection with its evaluation of the Merger. The SEC rules which would otherwise require a reconciliation of
a non-GAAP financial measure to a GAAP financial measure do not apply to non-GAAP financial measures included in disclosures relating
to a proposed business combination such as the Merger if the disclosure is included in a document such as this consent solicitation
statement. In addition, reconciliations of non-GAAP financial measures were not relied upon by Nomura for purposes of its opinion
or by the Board of Directors in connection with its evaluation of the Merger. Accordingly, Majesco has not provided a reconciliation
of the financial measures included in the Projections to the relevant GAAP financial measures. Non-GAAP financial measures should
not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP
financial measures as used by Majesco may not be comparable to similarly titled amounts used by other companies. Neither Majesco’s
independent auditor nor any other independent accountant has compiled, examined or performed any procedures with respect to the
Projections, nor have they expressed any opinion or any other form of assurance on such information or its achievability.
Adjusted EBITDA is a “non-GAAP financial measure,”
which is a financial performance measure that is not calculated in accordance with GAAP. This non-GAAP financial measure should
not be viewed as a substitute for any GAAP financial measure and may be different from non-GAAP financial measures used by other
companies. Furthermore, there are limitations inherent in non-GAAP financial measures because they exclude charges and credits
that are required to be included in a GAAP presentation. Accordingly, non-GAAP financial measures should be considered together
with, and not as an alternative to, financial measures prepared in accordance with GAAP. The summary of such information above
is included solely to give Majesco shareholders access to the information that was made available to the Board of Directors and
Nomura and is not included in this consent solicitation statement in order to influence any Majesco shareholder to make any investment
decision with respect to the Merger, including whether or not to exercise dissenters’ rights with respect to their shares
of Majesco common stock.
In
addition, the Projections have not been updated or revised to reflect information or results after the date they were prepared
or as of the date of this consent solicitation statement, and except as required by applicable securities laws, Majesco does not
intend to update or otherwise revise the Projections or the specific portions presented to reflect circumstances existing after
the date when made or to reflect the occurrence of future events, even in the event that any or all of the underlying assumptions
are shown to be in error.
Interests
of Majesco’s Directors, Executive Officers and Affiliates in the Merger
When
considering the recommendation of the Board of Directors that you consent to the Merger Proposal, you should be aware that our
directors, executive officers and affiliates may have interests in the Merger that are different from, or in addition to, the
interests of Majesco shareholders generally, as more fully described below. The Board of Directors was aware of and considered
these interests, among other matters, to the extent that they existed at the time, in approving the Merger Agreement and the Merger
and recommending that the Merger Proposal be approved by the Majesco shareholders. These interests are described in more detail
and, where applicable, are quantified in the narrative below. The amounts set forth in the narrative below assume that the closing
of the Merger will occur on October 1, 2020. For purposes of any severance calculations in this narrative, it was assumed
that termination of employment will occur on October 1, 2020.
Treatment
of Company Options and Company RSU Awards
At
the Effective Time, each outstanding vested and unvested Company Option under the Majesco 2015 Equity Incentive Plan will be
automatically and without any action on the part of the holder thereof cancelled and converted into the right to receive the
Company Option Cash Out Payment, less any required withholding taxes, payable on the first payroll date after the closing
date.
Any
outstanding Company Option (whether vested or unvested) with a per share exercise price equal to or greater than the Per Share
Merger Consideration will be automatically cancelled at the Effective Time and forfeited without payment or consideration.
At
the Effective Time, each Company RSU outstanding under the Majesco 2015 Equity Incentive Plan will be automatically and
without any action on the part of the holder thereof cancelled and converted to the right to receive the Company RSU Cash Out
Payment, less any required withholding taxes, payable on the first payroll date after the closing date.
The
Majesco 2015 Equity Incentive Plan will terminate at or prior to the Effective Time.
Treatment of Awards Under ESOP of
Majesco Limited
Several
employees of Majesco and its subsidiaries are recipients of equity awards under the ESOP of Majesco Limited. In addition, Farid
Kazani, while not an employee of Majesco, is its interim Chief Financial Officer and a recipient of awards under the ESOP.
In connection with the Merger, Majesco Limited shall take all
actions necessary to accelerate the vesting of all awards under the ESOP to employees of Majesco and its subsidiaries, including
submitting amendments to the ESOP required to effectuate such acceleration and vesting to its shareholders for approval in the
Majesco Limited Postal Ballot in accordance with applicable law. Following receipt of such approval, Majesco Limited shall satisfy
all of its obligations under the ESOP to the holders of such awards which have validly exercised their rights under such awards
as promptly as practicable in accordance with applicable laws and cancel all awards that require such cancellation under applicable
laws.
Treatment of Purchase Rights under
the ESPP
Under
the Merger Agreement, Majesco will take all actions with respect to its ESPP such that no participant may increase the percentage
amount of his or her payroll deduction election from that in effect on July 20, 2020 for the current offering period , and no
participant may make separate non-payroll contributions to the ESPP other than as required by applicable Law. No individual who
was not already participating in the ESPP as of July 20, 2020 will be allowed to commence participation in the ESPP after July
20, 2020. In addition, subject to the consummation of the Merger, the ESPP will be terminated, effective immediately on the earlier
of the Effective Time and September 30, 2020. Immediately prior to the Effective Time, if the Merger occurs before September 30,
2020, any then-outstanding rights under the ESPP will terminate and Majesco will distribute to each ESPP participant all of his
or her accumulated payroll deductions (to the extent not yet applied to the purchase of shares) with respect to the current offering
period ended September 30, 2020. Following the purchase of shares pursuant to the current offering period ended September 30,
2020 (if any), the ESPP will be suspended and no new offering period will be commenced under the ESPP after the earlier of the
Effective Time and September 30, 2020.
Shares
and Equity Awards Held by Majesco’s Executive Officers and Non-Employee Directors
The
following table sets forth the number of shares of Majesco common stock and the number of shares of Majesco common stock underlying
equity awards held by each of Majesco’s executive officers and non-employee directors that are outstanding as of August
3, 2020 under the Majesco 2015 Equity Incentive Plan, taking into account any vesting that occurs with respect to such equity
awards on or prior to October 1, 2020. The table also sets forth the values of these shares and equity awards, determined as the
number of shares multiplied by the Per Share Merger Consideration, Company Option Cash Out Payment or Company RSU Cash Out Payment,
as applicable). No additional shares of Majesco common stock or equity awards were granted to any executive officer or non-employee
director in contemplation of the Merger.
|
Name
|
|
Company
Options
(#)(1)
|
|
|
Company
Options ($)
|
|
|
Company
RSUs
(#)(2)
|
|
|
Company
RSUs ($)
|
|
|
Total ($)
|
|
|
Adam Elster
|
|
|
—
|
|
|
|
—
|
|
|
|
100,000
|
|
|
$
|
1,600,000
|
|
|
$
|
1,600,000
|
|
|
Prateek Kumar Solanki
|
|
|
163,333
|
|
|
$
|
1,771,330
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,771,330
|
|
|
Farid Kazani
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
James Miller
|
|
|
—
|
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
800,000
|
|
|
$
|
800,000
|
|
|
Edward Ossie
|
|
|
128,333
|
|
|
$
|
1,407,880
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,407,880
|
|
|
Mallinath Sengupta
|
|
|
80,000
|
|
|
|
828,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
828,000
|
|
|
Manish D. Shah
|
|
|
259,897
|
|
|
$
|
2,585,880
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2,585,880
|
|
|
Wayne Locke(3)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Dr. Arun Maheshwari
|
|
|
181,666
|
|
|
$
|
1,987,244
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
1,987,244
|
|
|
Earl Gallegos
|
|
|
81,666
|
|
|
$
|
895,244
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
895,244
|
|
|
Steven R. Isaac
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Atul Kanagat
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Sudhakar Ram
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Robert R. Restrepo, Jr.
|
|
|
81,666
|
|
|
$
|
898,910
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
898,910
|
|
|
Rajesh Hukku
|
|
|
50,000
|
|
|
$
|
510,500
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
510,500
|
|
|
Carolyn Johnson
|
|
|
50,000
|
|
|
$
|
376,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
376,000
|
|
|
Ketan Mehta
|
|
|
306,667
|
|
|
$
|
3,149,371
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3,149,371
|
|
|
(1)
|
The number of shares
of Majesco common stock subject to Company Options includes both vested and unvested Company Options. The number of shares
subject to the vested and unvested portions of the Company Options and the value (determined as the aggregate number of underlying
shares multiplied by the Per Share Merger Consideration minus the aggregate exercise price with respect to such shares) of
those portions of the Company Options are set forth in the table below.
|
|
|
|
|
(2)
|
For the purposes
of this table, we have assumed that the closing of the Merger will occur on October 1, 2020. As a result, this
number reflects the number of shares of Majesco common stock subject to Company RSUs that were not vested as of October
1, 2020.
|
|
|
|
|
(3)
|
Mr. Locke’s employment with Majesco terminated
without cause, effective as of July 8, 2020 and, in connection with his termination of employment, all of Mr. Locke’s
Company unvested RSUs were forfeited.
|
|
Name
|
|
Vested
Company
Options (#)
|
|
|
Vested
Company
Options ($)
|
|
|
Unvested
Company
Options (#)
|
|
|
Unvested
Company
Options ($)
|
|
|
Adam Elster
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Prateek Kumar Solanki
|
|
|
148,333
|
|
|
$
|
1,610,830
|
|
|
|
15,000
|
|
|
$
|
160,500
|
|
|
Farid Kazani
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
James Miller
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Edward Ossie
|
|
|
119,583
|
|
|
$
|
1,313,792
|
|
|
|
8,750
|
|
|
$
|
94,088
|
|
|
Mallinath Sengupta
|
|
|
40,000
|
|
|
$
|
414,000
|
|
|
|
40,000
|
|
|
$
|
414,000
|
|
|
Manish D. Shah
|
|
|
244,897
|
|
|
$
|
2,425,380
|
|
|
|
15,000
|
|
|
$
|
160,500
|
|
|
Wayne Locke
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Dr. Arun Maheshwari
|
|
|
177,916
|
|
|
$
|
1,945,431
|
|
|
|
3,750
|
|
|
$
|
41,813
|
|
|
Earl Gallegos
|
|
|
77,916
|
|
|
$
|
853,431
|
|
|
|
3,750
|
|
|
$
|
41,813
|
|
|
Steven R. Isaac
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Atul Kanagat
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Sudhakar Ram
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Robert R. Restrepo, Jr.
|
|
|
77,916
|
|
|
$
|
857,097
|
|
|
|
3,750
|
|
|
$
|
41,813
|
|
|
Rajesh Hukku
|
|
|
33,334
|
|
|
$
|
340,340
|
|
|
|
16,666
|
|
|
$
|
170,160
|
|
|
Carolyn Johnson
|
|
|
16,666
|
|
|
$
|
125,328
|
|
|
|
33,334
|
|
|
$
|
250,672
|
|
|
Ketan Mehta
|
|
|
232,501
|
|
|
$
|
2,492,418
|
|
|
|
74,166
|
|
|
$
|
656,953
|
|
The
following table sets forth the number of shares of Majesco Limited common stock and the number of shares of Majesco Limited common
stock underlying equity awards held by Messrs. Solanki, Kazani and Shah that are outstanding as of August 3, 2020 under the ESOP
of Majesco Limited, taking into account any vesting that occurs with respect to such equity awards on or prior to October 1, 2020.
The table also sets forth the values of these shares and equity awards, determined as ₹713.30, the closing price of the
shares of Majesco Limited on the stock exchanges in India on August 11, 2020. No additional shares of Majesco Limited common stock
or equity awards were granted to any executive officer or non-employee director in contemplation of the Merger.
|
Name
|
|
Majesco
Ltd.
Options
(#)(1)
|
|
|
Majesco
Ltd.
Options (₹)
|
|
|
Majesco
Ltd.
RSUs
(#)(2)
|
|
|
Majesco
Ltd.
RSUs (₹)
|
|
|
Total (₹)
|
|
|
Prateek Kumar Solanki
|
|
|
—
|
|
|
|
—
|
|
|
|
10,002
|
|
|
₹
|
7,084,416
|
|
|
₹
|
7,084,416
|
|
|
Farid Kazani
|
|
|
90,000
|
|
|
₹
|
29,640,000
|
|
|
|
118,604
|
|
|
₹
|
84,007,213
|
|
|
₹
|
113,647,213
|
|
|
Manish D. Shah
|
|
|
—
|
|
|
|
—
|
|
|
|
20,004
|
|
|
₹
|
14,165,432.50
|
|
|
₹
|
14,165,432.50
|
|
|
(1)
|
The
number of shares of Majesco Limited common stock subject to Majesco Limited stock options includes both vested and unvested
options. The number of shares subject to the vested and unvested portions of the Majesco Limited stock options and the value
(determined as ₹713.30, closing price of the stock on August 11, 2020) of those portions of the Majesco Limited stock
options are set forth in the table below.
|
|
|
|
|
(2)
|
For
the purposes of this table, we have assumed that the closing of the Merger will occur on October 1, 2020.
|
|
Name
|
|
Vested
Majesco Ltd.
Options (#)
|
|
|
Vested
Majesco Ltd.
Options (₹)
|
|
|
Unvested
Majesco Ltd.
Options (#)
|
|
|
Unvested
Majesco Ltd.
Options (₹)
|
|
|
Prateek Kumar Solanki
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Farid Kazani
|
|
|
81,250
|
|
|
|
₹26,317,375
|
|
|
|
8,750
|
|
|
₹
|
3,322,625
|
|
|
Manish D. Shah
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Name
|
|
Vested
Majesco Ltd.
RSUs (#)
|
|
|
Vested
Majesco Ltd.
RSUs (₹)
|
|
|
Unvested
Majesco Ltd.
RSUs (#)
|
|
|
Unvested
Majesco Ltd.
RSUs (₹)
|
|
|
Prateek Kumar Solanki
|
|
|
—
|
|
|
|
—
|
|
|
|
10,002
|
|
|
₹
|
7,084,416
|
|
|
Farid Kazani
|
|
|
16,665
|
|
|
|
₹11,803,819
|
|
|
|
101,939
|
|
|
₹
|
72,203,393
|
|
|
Manish D. Shah
|
|
|
—
|
|
|
|
—
|
|
|
|
20,004
|
|
|
₹
|
14,168,833
|
|
Payments
At or Following Change of Control
Employment
Agreements and Severance Policies with Certain Executive Officers
Each
of our executive officers is entitled to severance or notice pay in the event of a termination by us without cause. Messrs. Elster
and Miller are also entitled to severance in the event of a resignation by such named executive officer for good reason. The details
of such severance arrangements are described below. In addition, Mr. Elster is entitled to receive a retention bonus in connection
with the Merger, as further described below.
Pursuant
to the terms of the employment offer letter dated September 20, 2018 (the “Elster Offer Letter”), except if Mr. Elster’s
employment is terminated by Majesco for Cause (as defined in the Elster Offer Letter) or Mr. Elster resigns without Good
Reason (as defined in the Elster Offer Letter), Mr. Elster will receive any earned but unpaid bonus for the fiscal year preceding
the date of termination and a pro-rated annual bonus for the year in which the termination occurs (based on the time employed
during such fiscal year) and based on actual performance during such fiscal year. The estimated severance amount of such bonus
payments will be $250,000. In addition, if we terminate Mr. Elster’s employment without Cause or Mr. Elster resigns
for Good Reason, then subject to his execution and non-revocation of a release of claims, Mr. Elster shall receive severance
equal to 12 months of his then-current base salary ($500,000); provided, however, if Mr. Elster’s employment
is terminated within 120 days prior to, or twelve months following, a Corporate Transaction of the Company (as defined in the
2015 Equity Incentive Plan), Mr. Elster will receive two times the sum of his then-current base salary plus his target
annual bonus (in each case payable over a period of 12 months following his release becoming effective), resulting in an
estimated aggregate amount of $2,000,000. In addition, if we terminate Mr. Elster’s employment without Cause or Mr. Elster
resigns for Good Reason, then subject to his execution and non-revocation of a release of claims, if Mr. Elster timely
elects and remains eligible for coverage pursuant to COBRA, we will pay or reimburse him an amount equal to the full monthly premium
for COBRA continuation coverage under our medical plans as in effect on the date of his termination with respect to the level
of coverage in effect for Mr. Elster and his eligible dependents as of the date of his termination, with respect to the period
from the date of his termination until the earlier of (x) 12 months following such date and (y) the date he becomes eligible
for continued coverage under a subsequent employer’s health plan, resulting in an estimated payment of $19,401.72.
Pursuant
to the terms of the employment letter agreement with James Miller dated March 12, 2019 (the “Miller Offer Letter”),
we may terminate Mr. Miller’s employment at any time without Cause (as defined in the Miller Offer Letter) on two weeks
prior notice or with Cause, and Mr. Miller may terminate his employment at any time by providing two weeks prior notice.
In the event that Mr. Miller’s employment is terminated by us without Cause, Mr. Miller will receive a lump sum
payment equal to six months of his then base salary and the pro-rated portion of any annual bonus Mr. Miller may be
entitled to (the “Miller Severance Payment”) subject to his execution and non-revocation of a release of claims, resulting
in an estimated payment of $287,500. In the event that Mr. Miller’s employment is terminated for a reason defined as
a Change in Control (as defined in the Miller Offer Letter) or Mr. Miller terminates his employment for Good Reason (as defined
in the Miller Offer Letter) as a result of a Change in Control, Mr. Miller will receive the Miller Severance Payment in an
amount equal to $287,500. While the Miller Offer Letter does not provide for such continuation of coverage, Mr. Miller will receive
six months of Company-paid COBRA coverage, valued in the amount of $9,700.86, in the event of his termination without Cause or
for Good Reason as a result of a Change in Control.
Pursuant
to the terms of the employment letter agreement with Edward Ossie dated December 1, 2014 (the “Ossie Offer Letter”),
Mr. Ossie’s employment is “at will” and we may terminate his employment at any time, with a four week notice
period or Mr. Ossie may terminate his employment, with a four week notice period. In the event that Mr. Ossie’s employment
is terminated by us at any time for any reason, Mr. Ossie will receive a lump sum payment equal to six months of his then base
salary and benefits, as well as accelerated vesting with respect to any granted option program, subject to approval by our Board
of Directors, resulting in a severance payment in the amount of $279,088. The severance benefits provided for in the Ossie Offer
Letter will be provided subject to Mr. Ossie’s compliance with all restrictive covenants to which he is subject, as well
as the execution of such documents or agreements as we may require after his termination. Though Mr. Ossie may not be entitled
to such a benefit under the Ossie Offer Letter, pursuant to the Company’s severance policy (as described further below)
he may also be entitled to receive the pro-rated portion of his annual bonus.
Pursuant
to the terms of the employment agreement with Manish Shah dated March 7, 2012, as amended from time to time (the “Shah Employment
Agreement”), Mr. Shah’s employment is subject to automatic annual renewal on the anniversary of the effective date
thereof, unless 90 days prior to any such anniversary, either party gives notice that the term will not be extended. The Company
may terminate Mr. Shah’s employment at any time without Cause (as defined in the Shah Employment Agreement) on ten business
days’ written notice, and Mr. Shah may terminate his employment at any time for Good Reason (as defined in the Shah Employment
Agreement) by providing ten business days’ written notice. Additionally, both the Company and Mr. Shah may terminate his
employment immediately at any time, for Cause or without Good Reason, as applicable, upon written notice to the other party. If
Mr. Shah’s employment is terminated by the Company without Cause or by Mr. Shah for Good Reason, Mr. Shah will be entitled
to receive a severance payment determined by (i) dividing his highest annual salary over the past 12 months by 12 to determine
the monthly salary; and then (ii) multiplying such monthly salary by six. Such severance payment will be in the amount of
$175,000 and will be paid in equal monthly installments (without interest) on the first day of each calendar month, subject to
Mr. Shah’s execution and non-revocation of a general release in favor of Majesco and compliance with his restrictive covenants.
Pursuant to the terms of the Agreement and General Release dated
July 8, 2020, between Wayne Locke and Majesco (the “Locke Agreement”), Mr. Locke’s employment terminated without
cause as of July 8, 2020. Pursuant to the Locke Agreement, Mr. Locke received a severance payment consisting of: (i) two weeks
of notice pay in the amount of $11,153.85; (ii) six months of base salary in the gross amount of $145,000; (iii) a pro-rated portion
of Mr. Locke’s bonus payment for fiscal year 2021 in the amount of $39,293.89; and (iv) up to $9,700.86 as a COBRA assistance
payment if Mr. Locke elects to enroll in “COBRA” type continuation coverage under the Company’s group health
plan, for the six months period following termination of employment. In exchange for this severance payment, Mr. Locke provided
a general release in favor of Majesco.
On
May 7, 2019, our Board of Directors and compensation committee adopted a severance policy for the Majesco Leadership Team
and Senior Vice Presidents (including Messrs. Solanki, Sengupta, Ossie and Shah) who have been with Majesco for at least one year
(collectively, the “Executives”) and are terminated without cause (as defined in the policy). Generally no severance
will be payable if termination is due to the Executive’s dishonesty (including theft), insubordination, job abandonment,
willful refusal to perform his or her job, violation of the Executive’s employment agreement and confidentiality obligations,
violation of Majesco policies on discrimination, unlawful harassment and substance abuse and other policies in the Majesco employee
handbook and excessive absenteeism. Under the policy, the Executives will be entitled to receive severance of six months of their
base salary in addition to any applicable notice period, their annual bonus based on Majesco performance pro-rated to the
number of completed months worked in the period and six months of Company-paid COBRA premiums (or health insurance coverage
until the end of the fiscal year for India employees). Assuming a qualifying termination, with respect to Mr. Solanki, this would
result in an estimated severance amount equal to $271,493.16, comprised of $150,000 in base salary continuation, $112,500 in pro-rated
bonus, and $8,993.16 in coverage continuation. With respect to Mr. Sengupta, this would result in an estimated severance amount
equal to $231,493.20, comprised of $150,000 in base salary continuation, $75,000 in pro-rated bonus, and $6,493.20 in coverage
continuation. With respect to Mr. Ossie, this would result in an estimated severance amount equal to $264,700.86, comprised of
$170,000 in base salary continuation, $85,000 in pro-rated bonus, and $9,700.86 in coverage continuation. Mr. Ossie is additionally
entitled to continuation of life insurance coverage for six months, the value of which is currently uncertain. With respect to
Mr. Shah, this would result in an estimated severance amount equal to $275,800.86, comprised of $175,000 in base salary continuation,
$87,500 in pro-rated bonus, and $13,300.86 in coverage continuation. In addition, the Executives will have 90 days to exercise
their vested options. In order to receive these benefits, the Executives will be required to execute and not revoke a release
of claims against Majesco and agree to a one year non-compete and non-solicit covenant. The policy does not amend the
terms for the severance of Executives under their existing employment agreements.
Mr.
Kazani’s employment arrangements with Majesco Limited provide that, in the event of a change in management or restructuring
of Majesco Limited, or any other event which will result in the exit of Mr. Kazani, irrespective of such exit having been effectuated
by Majesco Limited or by Mr. Kazani’s resignation, Mr. Kazani shall be entitled to severance compensation equal to 12 months
of gross annual salary, resulting in an estimated severance amount of ₹32,682,372, equivalent to $437,859 based on the exchange
rate on August 11, 2020. Additionally, the compensation committee may in its sole discretion, cause any unvested equity awards
to become vested and exercisable in whole or in part in the event of a change in control.
Other
Arrangements
Each
employee of Majesco and its subsidiaries who continues to remain employed with Majesco or its subsidiaries following the Effective
Time may enter into new employment arrangements with Parent. To date, employees of Majesco and its subsidiaries have entered into
any such arrangements with Parent.
Change
of Control Bonus Agreements
Pursuant
to the bonus letter with Adam Elster, Majesco’s Chief Executive Officer, dated July 19, 2020 (the “Bonus Letter”)
Mr. Elster will be entitled to receive a $3.5 million retention bonus (the “Retention Bonus”) payable as follows:
$2.8 million upon consummation of the Merger and $700,000 (the “Remaining Payment”) one year following the consummation
of the Merger, in each case subject to Mr. Elster’s continuous employment through the applicable payment date. Notwithstanding
the foregoing, if prior to the payment of the Remaining Payment, but after the closing of the Merger, Mr. Elster’s employment
is terminated by Majesco without Cause or by Mr. Elster for Good Reason, as such terms are defined in the Elster Offer Letter,
he will be entitled to receive the Remaining Payment within 60 days of such termination. Furthermore, as consideration for receipt
of the Retention Bonus, Mr. Elster agreed, (a) subject to the occurrence of the closing of the Merger, to no longer be entitled
to receive any grants of Annual RSUs (as such term is defined in Elster Offer Letter) and no longer be entitled to receive any
grants of Annual RSUs for any period of time preceding the date of the Bonus Letter; (b) Good Reason shall not be triggered, and
Mr. Elster shall have no right to terminate his employment for Good Reason, as a result of the potential changes to his duties,
authority and responsibilities solely due to the Company no longer being publicly traded as a result of the consummation of the
Merger; and (c) to extend the post-employment-termination non-competition restriction period contained in the Elster Offer Letter
to run for a period of twelve months after termination of employment plus the number of full months (if positive) between Mr.
Elster’s termination date and the first anniversary of the consummation of the Merger.
Additionally, Mr. Kazani is entitled to
receive a “commendation payment” in the event of the divestment of Majesco Limited’s entire stake/investment
in Majesco to a third party, which shall be equal to 0.6% of the gross value realized by Majesco Limited in India from the Merger
for playing a pivotal role in effectuating the Divestment in his capacity as a key member
of the Majesco Limited management leadership team. Such commendation payment shall be payable by Majesco Limited following
Closing.
Mr. Earl Gallegos, Majesco’s Audit Committee Chairman,
also received $15,000 in the aggregate in committee fees for his additional work on the Negotiating Committee in connection with
the Merger.
Transition
Service Payments
Pursuant
to the Support Agreement, Majesco Limited has agreed to provide certain transition services to MSSIPL, a subsidiary of Majesco,
for the Initial Term. Specifically, Majesco Limited will provide, among other services, (i) the Personnel Services and (ii) at
cost, the Transition Services. Majesco (or MSSIPL, at Majesco’s election) will pay Majesco Limited $48,326 per month for
the Personnel Services. Majesco may, upon written notice to Majesco Limited, extend the Initial Term for two additional one month
periods. Furthermore, Majesco may terminate the provision of any Transition Service upon 15 days prior written notice to Majesco
Limited. Furthermore, pursuant to the Support Agreement, to the extent Majesco Limited owns any Intellectual Property (as defined
in the Support Agreement) related to the Company or its subsidiaries’ businesses, Majesco Limited shall assign and convey
to the Company all right, title and interest in and to such Intellectual Property. Effective as of the closing date of the Merger
and subject to certain exceptions, the parties to the Support Agreement agree to terminate all contracts between Majesco Limited,
on the one hand, and the Company or any of its subsidiaries, on the other hand.
Quantification
of Potential Payments to Company Named Executive Officers in Connection with the Merger
This
section sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation for each of Majesco’s
named executive officers that is based on or otherwise relates to the Merger. This compensation is referred to as “golden
parachute compensation” by the applicable SEC disclosure rules. The amounts set forth in the table below are estimates based
on multiple assumptions that may or may not actually occur, including assumptions described in this consent solicitation statement
and in the footnotes to the table. As a result, the actual amounts, if any, that a named executive officer receives may materially
differ from the amounts set forth in the table.
The
table below assumes that: (i) the Effective Time of the Merger will occur on October 1, 2020; (ii) a price per share
of Majesco common stock of $16.00, which represents the average closing trading price of Majesco common stock over the first five
days following the public announcement of the Amended and Restated Merger Agreement; (iii) the employment of the named executive
officers will be terminated immediately following the Effective Time of the Merger in a manner entitling the named executive officer
to receive the severance benefits described in the section of this consent solicitation statement captioned “The Merger—Interests
of Majesco’s Directors and Executive Officers in the Merger—Payments At Or Following Change Of Control;”
and (iv) no named executive officer becomes entitled to additional compensation or benefits or equity awards prior to the
Effective Time of the Merger. Pursuant to applicable proxy disclosure rules, the value of the equity award vesting acceleration
below is equal to the number of shares covered by the applicable Company Option or Company RSU that are accelerated multiplied
by the Per Share Merger Consideration (per share). The amounts shown on the table below do not include the value of payments or
benefits that would have been earned, or any amounts associated with equity awards that vest pursuant to their terms, on or prior
to the Effective Time of the Merger, or the value of payments or benefits that are not based on or otherwise related to the Merger.
In
the footnotes to the amounts shown in the table below, we refer to payments that are conditioned on the occurrence of both the
Merger, as well as the named executive officer’s qualifying termination of employment as being payable on a “double-trigger”
basis, and we refer to payments that are conditioned only upon the occurrence of the Merger as being payable on a “single-trigger”
basis. The individuals named below represent the executive officers for the Company’s fiscal year ending March 31, 2020.
Golden
Parachute Compensation
|
Name
|
|
Cash(1)
|
|
|
Equity(2)
|
|
|
Perquisites
and Benefits(3)
|
|
|
Total
|
|
|
Adam Elster, Chief Executive Officer
|
|
$
|
5,750,000
|
|
|
$
|
1,600,000
|
|
|
$
|
19,401.72
|
|
|
$
|
7,369,401.72
|
|
|
James Miller, Chief Revenue Officer
|
|
$
|
287,500
|
|
|
$
|
800,000
|
|
|
$
|
9,700.86
|
|
|
$
|
1,097,200.86
|
|
|
Prateek Kumar Solanki, Executive Vice President
|
|
$
|
262,500
|
|
|
$
|
255,123.97
|
|
|
$
|
8,993.16
|
|
|
$
|
526,617.13
|
|
(1)
|
Name
|
|
Base Salary Continuation ($)
|
|
|
Pro Rata Cash Bonus Acceleration ($)
|
|
|
Transaction/Retention Bonus Severance ($)
|
|
|
Total
|
|
|
Adam Elster,
Chief Executive Officer(a)
|
|
$
|
1,000,000
|
|
|
$
|
1,250,000
|
|
|
$
|
3,500,000
|
|
|
$
|
5,750,000
|
|
|
James Miller, Chief
Revenue Officer(b)
|
|
$
|
162,500
|
|
|
$
|
125,000
|
|
|
|
—
|
|
|
$
|
287,500
|
|
|
Prateek Kumar Solanki,
Executive Vice President(c)
|
|
$
|
150,000
|
|
|
$
|
112,500
|
|
|
|
—
|
|
|
$
|
262,500
|
|
|
(a)
|
Pursuant
to the terms of the Elster Offer Letter, if Mr. Elster’s employment is terminated by Majesco for Cause (as defined in
the Elster Offer Letter) or if Mr. Elster resigns without Good Reason (as defined in the Elster Offer Letter), Mr. Elster
will receive a pro-rated annual bonus for the year in which the termination occurs (based on the time employed during such
fiscal year) and based on actual performance during such fiscal year. Additionally, if Mr. Elster’s employment
is terminated by Majesco without Cause or if Mr. Elster resigns with Good Reason within 120 days prior to, or twelve months
following a change of control of the Company, Mr. Elster will receive two times the sum of his then-current base salary. In
addition, Mr. Elster will be entitled to receive his entire target annual bonus. Pursuant to the Bonus Letter, Mr. Elster
will be entitled to receive a $3.5 million retention bonus, $2.8 million of which will be payable upon consummation of the
Merger, and $700,000 of which will be payable one year following the consummation of the Merger (the “Remaining Payment”),
in each case subject to Mr. Elster’s continuous employment through the applicable payment date. Notwithstanding
the foregoing, if prior to the payment of such Remaining Payment, but after the closing of the Merger, Mr. Elster’s
employment is terminated by the Company without Cause or by Mr. Elster for Good Reason, he will be entitled to receive the
Remaining Payment within 60 days of such termination.
|
|
|
|
|
(b)
|
Pursuant
to the terms of the Miller Offer Letter, in the event that Mr. Miller’s employment is terminated for a Change in Control
(as defined in the Miller Offer Letter) or Mr. Miller terminates his employment for Good Reason (as defined in the Miller
Offer Letter) as a result of a Change in Control, Mr. Miller will receive a lump sum payment equal to six months of his then
base salary and the pro-rated portion of any annual bonus to which Mr. Miller may be entitled.
|
|
|
|
|
(c)
|
Pursuant
to the severance policy adopted by our Board on May 7, 2019, Mr. Solanki is entitled to receive severance in the amount of
six months of his base salary in addition to any applicable notice period and his annual bonus based on Majesco performance
pro-rated for the number of completed months worked in the applicable period.
|
(2)
|
Name
|
|
Unvested
Company Options (#)
|
|
|
Company
Option Cash Out Payment ($)
|
|
|
Unvested
RSUs (#)
|
|
|
Acceleration
of Vesting of Unvested RSUs ($)
|
|
|
Total
|
|
|
Adam Elster,
Chief Executive Officer(a)
|
|
|
—
|
|
|
|
—
|
|
|
|
100,000
|
|
|
$
|
1,600,000
|
|
|
$
|
1,600,000
|
|
|
James Miller, Chief
Revenue Officer(b)
|
|
|
—
|
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
800,000
|
|
|
$
|
800,000
|
|
|
Prateek
Kumar Solanki, Executive Vice President(c)
|
|
|
15,000
|
|
|
$
|
160,500
|
|
|
|
10,002
|
|
|
$
|
94,623.97
|
|
|
$
|
255,123.97
|
|
|
(a)
|
The
terms of the Merger Agreement provide that at the Effective Time, all Company RSUs shall be automatically cancelled in exchange
for only the right to receive an amount in cash equal to the product of (i) the number of shares of Majesco common stock subject
to such Company RSU immediately prior to the Effective Time, multiplied by (ii) the Per Share Merger Consideration, less any
required withholding taxes).
|
|
|
|
|
(b)
|
The
terms of the Merger Agreement provide that at the Effective Time, all Company RSUs shall be automatically cancelled in exchange
for only the right to receive an amount in cash equal to the product of (i) the number of shares of Majesco common stock subject
to such Company RSU immediately prior to the Effective Time, multiplied by (ii) the Per Share Merger Consideration, less any
required withholding taxes).
|
|
|
|
|
(c)
|
At
the effective time, Mr. Solanki will receive the Company Option Cash Out Payment with respect to his unvested Company Options
in the amount of $160,500. In connection with the Merger, the vesting of Mr. Solanki’s Majesco Limited RSU awards will
accelerate in the amount of ₹7,084,416, equivalent to $94,623.97 based on the exchange rate on August 11, 2020.
|
(3)
|
Name
|
|
Continuation
of COBRA Coverage
|
|
|
Adam Elster,
Chief Executive Officer(a)
|
|
$
|
19,401.72
|
|
|
James Miller, Chief
Revenue Officer(b)
|
|
$
|
9,700.86
|
|
|
Prateek Kumar Solanki,
Executive Vice President(c)
|
|
$
|
8,993.16
|
|
|
(a)
|
Pursuant
to the terms of the Elster Offer Letter, if Mr. Elster’s employment is terminated by Majesco without Cause (as defined
in the Elster Offer Letter) or if Mr. Elster resigns without Good Reason (as defined in the Elster Offer Letter) within 120
days prior to, or twelve months following a change of control of the company, if Mr. Elster timely elects and remains eligible
for coverage pursuant to COBRA, the Company will pay or reimburse him an amount equal to the full monthly premium for COBRA
continuation coverage under Majesco’s medical plans as in effect on the date of his termination with respect to the
level of coverage in effect for Mr. Elster and his eligible dependents as of the date of his termination with respect to the
period from the date of his termination until the earlier of (x) 12 months following such date and (y) the date he becomes
eligible for continued coverage under a subsequent employer’s health plan.
|
|
|
|
|
(b)
|
Though
not provided for in the Miller Offer Letter, Majesco will provide Mr. Miller with six months of Company-paid COBRA premiums.
|
|
|
|
|
(c)
|
Pursuant
to the severance policy adopted by our Board on May 7, 2019, Mr. Solanki is entitled to receive six months of Company-paid COBRA
premiums.
|
|
Name
|
|
Single-Trigger
Payments ($)(1)
|
|
|
Double Trigger Payments ($)
|
|
|
Adam Elster, Chief Executive Officer
|
|
$
|
4,400,000
|
|
|
$
|
2,969,401.72
|
|
|
James Miller, Chief Revenue Officer
|
|
$
|
800,000
|
|
|
$
|
297,200.86
|
|
|
Prateek Kumar Solanki, Executive Vice President
|
|
$
|
255,123.97
|
|
|
$
|
271,493.16
|
|
|
(1)
|
With
respect to the Retention Bonus payable to Mr. Elster, the initial $2,800,000 portion of such payment is a single-trigger benefit.
The Remaining Payment portion of that Retention Bonus is a double-trigger benefit, dependent on both the consummation of the
Merger and Mr. Elster’s continued employment for one year following the consummation of the Merger (subject to acceleration
upon certain terminations of employment, as described above). The payment of the Company Option Cash Out Payment
to Mr. Solanki with respect to his unvested Company Options, as well as the accelerated vesting of his Majesco Limited RSU
awards, in connection with the Merger are also single-trigger benefits. The payment of the Company RSU Cash Out Payment to
Messrs. Elster and Miller with respect to their outstanding Company RSUs are also a single-trigger benefit. The salary continuation,
bonus payments, perquisites and benefits for Messrs. Elster, Miller and Solanki are considered double-trigger benefits, as
those payments are dependent upon both termination of employment and a change of control.
|
Insurance
and Indemnification of Directors and Executive Officers
The
Merger Agreement provides that all existing rights to indemnification, exculpation and the advancement of expenses for acts or
omissions occurring at or prior to the Effective Time existing as of July 20, 2020 in favor of the current or former directors,
officers or employees of Majesco (in each case, as provided in the respective organizational documents of Majesco) or in any indemnification
agreement between Majesco and the current or former directors or officers of Majesco in effect on July 20, 2020, will survive
the Merger and will continue in full force and effect and may not be amended for a period of six years from the Effective Time
in any manner that would adversely affect any right thereunder of such persons.
In
addition, the Merger Agreement provides that, during the six-year period commencing at the Effective Time, the Surviving Corporation
will (and Parent must cause the Surviving Corporation to) indemnify and hold harmless to the fullest extent permitted by applicable
and Majesco’s and its subsidiaries’ organizational documents in effect as of July 20, 2020 each current or former
director and officer of Majesco and its subsidiaries from and against all costs, fees and expenses (including attorneys’
fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities incurred in connection with, arising
out of, or otherwise related to, any legal proceeding, in connection with, arising out of or otherwise related to matters existing
or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including
in connection with the Merger, and actions to enforce indemnification or advancement right of any indemnified person. Parent or
the Surviving Corporation will also advance reasonable documented out of pocket expenses as incurred to the fullest extent permitted
to do so under applicable law and Majesco’s and its subsidiaries’ organizational documents in effect as of July 20,
2020.
In
addition, without limiting the foregoing, Majesco will purchase a “tail” policy prior to the Effective Time (which
Parent shall cause the Surviving Corporation to purchase if the Company is unable prior to closing), for the extension of (i)
the directors’ and officers’ liability coverage of Majesco’s existing directors’ and officers’ insurance
policies, and (ii) Majesco’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery
period of six years from and after the Effective Time. If the Company or the Surviving Corporation fail to obtain such “tail”
insurance policies, the Merger Agreement requires Parent to cause the Surviving Corporation to maintain, on terms no less advantageous
to the indemnified parties, the directors’ and officers’ insurance policies of Majesco for a period of at least six
years commencing at the Effective Time; provided that neither Parent nor the Surviving Corporation will be required to pay premiums
for such policy to the extent such premiums exceed, on an annual basis, 300% of the aggregate annual premiums currently paid by
Majesco, and if the premium for such insurance coverage would exceed such amount, Parent shall be obligated to cause the Surviving
Corporation to obtain the greatest coverage available for a cost equal to such amount.
Financing
of the Merger
We
anticipate that the total amount of funds necessary to complete the Merger and the related transactions, and to pay the fees
and expenses required to be paid at the closing of the Merger by Parent and Merger Sub under the Merger Agreement, will be
approximately $742.4 million. This amount includes funds needed to: (1) pay the Majesco shareholders the amounts due under the
Merger Agreement, (2) make payments in respect of our outstanding equity-based awards payable at closing of the Merger
pursuant to the Merger Agreement and (3) pay all costs and expenses of the Merger.
Equity
Financing
Pursuant
to the Equity Commitment Letter, the Thoma Bravo Funds have agreed to provide Parent with an equity commitment of up to $728,738,475
which is the amount estimated sufficient to fund the aggregate purchase price required to be paid at the closing of the Merger,
including (i) the aggregate consideration to which the holders of Majesco common stock are entitled pursuant to the Merger Agreement,
(ii) the Company RSU Cash Out Payment pursuant to the Merger Agreement and (iii) the Company Option Cash Out Payment pursuant
to the Merger Agreement. Majesco has a contractual right to enforce the foregoing Equity Commitment Letter against the Thoma Bravo
Funds, and under the terms of the Merger Agreement, Majesco has the right to specifically enforce Parent’s obligation to
consummate the Merger under certain circumstances.
The
Equity Commitment Letter provides, among other things, that Majesco is an express third party beneficiary thereof with respect
to enforcing Parent’s right to cause the equity commitment under the Equity Commitment Letter by the Thoma Bravo Funds to
be funded to Parent in order to consummate the Merger, if, and only if, the Company has received an order of specific performance
against Parent pursuant to the Merger Agreement to cause the closing of the Merger to occur and to cause Parent to enforce its
rights against each of the Thoma Bravo Funds to perform such fund’s obligations under the Equity Commitment Letter. See
the section captioned “Proposal 1: Merger Proposal––Specific Performance” for more information. The Equity
Commitment Letter may not be amended or otherwise modified without the prior written consent of Parent, the Thoma Bravo Funds
and Majesco.
Limited
Guaranty
Pursuant
to the Guaranty, the Thoma Bravo Funds have unconditionally guaranteed to the Company, subject to the terms and conditions thereof,
the due and punctual observance, performance and discharge of payment of:
|
|
●
|
the
aggregate amount of the Parent Termination Fee (as defined under the caption “The
Merger—Termination Fee”) solely if and when any of the Parent Termination
Fee is payable pursuant to the Merger Agreement;
|
|
|
●
|
the
Company’s enforcement costs if Parent fails to promptly pay the Parent Termination
Fee when due and the Company commences a suit that results in a judgement against Parent
(not to exceed $1,000,000); and
|
|
|
●
|
the
expense reimbursement obligations of Parent related to the Company’s cooperation
with Parent’s debt financing as required under the Merger Agreement. We refer to
the obligations set forth in the preceding sentence as the “Guaranteed Obligations.”
The obligations of the Thoma Bravo Funds under the Guaranty are subject to a cap equal
to $52,011,693.24.
|
Subject
to specified exceptions, the Guaranty will terminate upon the earliest of:
|
|
●
|
funding
of the commitment under the Equity Commitment Letter;
|
|
|
●
|
(1)
the payment and full discharge of any expense reimbursement obligations related to Parent’s
debt financing for which Majesco has requested reimbursement within 90 days following
the valid termination of the Merger Agreement and (2) the termination of the Merger Agreement
in accordance with its terms, other than a termination pursuant to which Majesco would
be entitled to a Parent Termination Fee under the Merger Agreement, in which case the
Guaranty shall terminate 90 days after such termination unless Majesco shall have delivered
a written notice with respect to the Guaranteed Obligations prior to such 90th day; provided
that if the Merger Agreement has been so terminated and such notice has been provided,
the Thoma Bravo Funds, as the guarantors under the Guaranty, shall have no further liability
or obligation under the Guaranty from and after the earliest of:
|
|
|
o
|
the
closing of the Merger, including payment of the aggregate merger consideration payable
at the closing in accordance with the Merger Agreement;
|
|
|
o
|
a
final, non-appealable order of a court of competent jurisdiction determining that the
Thoma Bravo Funds, as the guarantors under the Guaranty, do not owe any amount under
the Guaranty;
|
|
|
o
|
a
written agreement among the Thoma Bravo Funds, as the guarantors under the Guaranty,
and Majesco terminating the obligations and liabilities of the Thoma Bravo Funds, as
the guarantors under the Guaranty, pursuant to the Guaranty;
|
|
|
o
|
payment
of the Guaranteed Obligations by the Thoma Bravo Funds, as the guarantors under the Guaranty,
Parent and/or Merger Sub to Majesco.
|
Dissenters’
Rights of Majesco Shareholders
Any
Majesco shareholder wishing to exercise dissenters’ rights is urged to consult legal counsel before attempting to exercise dissenters’
rights. Failure to comply strictly with all of the procedures set forth in Chapter 13 of the CGCL, which consists of Sections 1300-1313,
may result in the loss of a shareholder’s statutory dissenters’ rights. In such case, such shareholder will be entitled to receive
the Per Share Merger Consideration under the Merger Agreement.
The
following discussion is a summary of Sections 1300-1313 of the CGCL, which sets forth the procedures for Majesco shareholders
to dissent from the proposed Merger and to demand statutory dissenters’ rights of appraisal of their shares under the CGCL. The
following discussion is not a complete statement of the provisions of the CGCL relating to the rights of Majesco shareholders
to receive payment of the fair market value of their shares and is qualified in its entirety by reference to the full text of
Sections 1300-1313 of the CGCL, which are provided in their entirety as Appendix C to this consent solicitation
statement.
All
references in Sections 1300-1313 of the CGCL and in this section to a “shareholder” are to the holder of record
of the shares of Majesco common stock as to which dissenters’ rights are asserted. A person having a beneficial interest in the
shares of Majesco common stock held of record in the name of another person, such as a broker or nominee, cannot enforce dissenters’
rights directly and must act promptly to cause the holder of record to follow the steps summarized below properly and in a timely
manner to perfect such person’s dissenters’ rights.
Chapter 13
of the CGCL provides Majesco shareholders who do not “CONSENT TO” the Merger Proposal with the right, subject to compliance
with the requirements summarized below, to dissent and demand the payment of, and be paid in cash, the fair market value of the
Majesco shares owned by such shareholders as of the Record Date. In accordance with Chapter 13 of the CGCL, the fair market
value of Majesco shares will be their fair market value determined as of August 13, 2020, the last trading day before the first
public announcement of the terms of the Merger, exclusive of any appreciation or depreciation in the value of the shares in consequence
of the Merger.
Even
though a shareholder who wishes to exercise dissenters’ rights may be required to take certain actions following receipt of this
consent solicitation statement to perfect their dissenters’ rights, if the Merger Agreement is later terminated and the Merger
is abandoned, no Majesco shareholder will have the right to any payment from Majesco, other than necessary expenses incurred in
proceedings initiated in good faith and reasonable attorneys’ fees, by reason of having taken that action. The following discussion
is subject to the foregoing qualifications.
Not
“Consent To” the Merger
Any
Majesco shareholder who desires to exercise dissenters’ rights must not “CONSENT TO” the Merger Proposal. If a Majesco
shareholder returns a signed written consent without indicating a decision regarding the Merger Proposal, or returns a signed
written consent approving the Merger Proposal, his, her or its shares will be counted as consents in favor of the Merger Proposal
and such shareholder will lose any dissenters’ rights. Thus, if you wish to dissent and you execute and return your written consent
in the accompanying form, you must specify that your disapprove of the Merger Proposal and that you withhold your consent with
respect to the Merger Proposal.
Notice
of Approval by Majesco
If
the Merger is approved by the Majesco shareholders, Majesco is required within ten days after the approval to send to those Majesco
shareholders who did not “CONSENT TO” the approval of the Merger a written notice of the Majesco shareholder approval,
accompanied by a copy of Sections 1300, 1301, 1302, 1303 and 1304 of the CGCL, a statement of the price determined by Majesco
to represent the fair market value of the dissenting shares as of July 17, 2020, and a brief description of the procedure to be
followed if the shareholder desires to exercise dissenters’ right under the CGCL. The statement of price determined by Majesco
to represent the fair market value of dissenting shares, as set forth in the notice of approval, will constitute an offer by Majesco
to purchase the dissenting shares at the stated price if the Merger is completed and the dissenting shares do not otherwise lose
their status as such. Within 30 days after the date of the mailing of the notice of shareholder approval, a dissenting shareholder
must submit to Majesco or its transfer agent for endorsement as dissenting shares, the stock certificates representing the Majesco
shares as to which such shareholder is exercising dissenter’s rights. If the dissenting shares are uncertificated, then such shareholder
must provide written notice of the number of shares which the shareholder demands that Majesco purchase within 30 days after
the date of the mailing of the notice of shareholder approval.
Written
Demand for Payment
In
addition, to preserve dissenters’ rights, a Majesco shareholder must make a written demand for the purchase of the shareholder’s
dissenting shares and payment to the shareholder of their fair market value within 30 days after the date on which the notice
of shareholder approval is mailed. Simply failing to return a written consent, or indicating on your written consent your disapproval
of the Merger does not constitute a proper written demand under the CGCL. To comply with the requirements under the CGCL, the
written demand must:
|
|
●
|
specify
the shareholder’s name and mailing address and the number and class of shares of Majesco
stock held of record which the shareholder demands that Majesco purchase;
|
|
|
●
|
state
that the shareholder is demanding purchase of the shares and payment of their fair market
value; and
|
|
|
●
|
state
the price which the shareholder claims to be the fair market value of the shares as of
July 17, 2020. The statement of fair market value constitutes an offer by the shareholder
to sell the shares to Majesco at that price.
|
Any
written demands for payment should be sent to Majesco, Attention: Corporate Secretary, 412 Mount Kemble Avenue, Suite 110C, Morristown,
NJ 07960. Shares of Majesco stock held by shareholders who have perfected their dissenters’ rights in accordance with Chapter 13
of the CGCL and have not withdrawn their demands or otherwise lost their dissenters’ rights are referred to in this summary as
dissenting shares.
Payment
of Agreed Upon Price
If
Majesco and a dissenting shareholder agree that the shares are dissenting shares and agree on the price of the shares, the dissenting
shareholder is entitled to receive the agreed upon price with interest at the legal rate on judgments from the date of that agreement.
Payment for the dissenting shares must be made within 30 days after the later of the date of that agreement or the date on
which all statutory and contractual conditions to the Merger are satisfied. Payments are also conditioned on the surrender of
the certificates representing the dissenting shares.
Determination
of Dissenting Shares or Fair Market Value
If
Majesco denies that shares are dissenting shares or the shareholder fails to agree with Majesco as to the fair market value of
the shares, then, within six months after notice of approval of the Merger is sent by Majesco to its shareholders, any shareholder
demanding purchase of such shares as dissenting shares or any interested corporation may file a complaint in the Superior
Court in the proper California county asking the court to determine whether the shares are dissenting shares or to determine the
fair market value of the shareholder’s shares, or both, or may intervene in any action pending on such complaint. If a complaint
is not filed or intervention in a pending action is not made within the specified six month period, the dissenter’s rights are
lost. If the fair market value of the dissenting shares is at issue, the court will determine, or will appoint one or more impartial
appraisers to determine, such fair market value.
Maintenance
of Dissenting Share Status
Except
as expressly limited by Chapter 13 of the CGCL, holders of dissenting shares continue to have all the rights and privileges
incident to their shares until the fair market value of their shares is agreed upon or determined. A holder of dissenting shares
may not withdraw a demand for payment unless Majesco consents to the withdrawal.
Dissenting
shares lose their status as dissenting shares, and dissenting shareholders cease to be entitled to require Majesco to purchase
their shares, upon any of the following:
|
|
●
|
the
Merger is abandoned;
|
|
|
●
|
the
shares are transferred before their submission to Majesco for the required endorsement;
|
|
|
●
|
the
dissenting shareholder and Majesco do not agree on the status of the shares as dissenting
shares or do not agree on the purchase price, but neither Majesco nor the shareholder
files a complaint or intervenes in a pending action within six months after Majesco
mails a notice that its shareholders have approved the Merger; or
|
|
|
●
|
with
Majesco’s consent, the dissenting shareholder withdraws the shareholder’s demand for
purchase of the dissenting shares.
|
To
the extent that the provisions of Chapter 5 of the CGCL (which place conditions on the power of a California corporation
to make distributions to its shareholders) prevent the payment to any holders of dissenting shares of the fair market value of
the dissenting shares, the dissenting shareholders will become creditors of Majesco for the amount that they otherwise would have
received in the repurchase of their dissenting shares, plus interest at the legal rate on judgments until the date of payment,
but subordinate to all other creditors of Majesco in any liquidation proceeding, with the debt to be payable when permissible
under the provisions of Chapter 5 of the CGCL.
Material
U.S. Federal Income Tax Consequences of the Merger
The
following discussion is a summary of material U.S. federal income tax consequences of the Merger that may be relevant to U.S.
Holders and Non-U.S. Holders (each as defined below) of shares of Majesco common stock whose shares are converted into
the right to receive cash pursuant to the Merger. This summary is general in nature and does not discuss all aspects of U.S. federal
income taxation that may be relevant to a Majesco shareholder in light of its particular circumstances. In addition, this summary
does not describe any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction and does
not consider any aspects of U.S. federal tax law other than income taxation. This discussion is based upon the Internal Revenue
Code of 1986, as amended (the “Code”), Treasury Regulations promulgated under the Code, court decisions, published
positions of the Internal Revenue Service (the “IRS”), and other applicable authorities, all as in effect on the date
of this consent solicitation statement and all of which are subject to change or differing interpretations at any time, possibly
with retroactive effect. This discussion is limited to Majesco shareholders who hold their shares of Majesco common stock as “capital
assets” within the meaning of Section 1221 of the Code (generally, property held for investment purposes).
This
discussion is for general information only and does not address all of the tax consequences that may be relevant to Majesco shareholders
in light of their particular circumstances. For example, this discussion does not address:
|
|
●
|
tax
consequences that may be relevant to Majesco shareholders who may be subject to special
treatment under U.S. federal income tax laws, such as banks or other financial institutions; tax-exempt organizations;
retirement or other tax deferred accounts; insurance companies; mutual funds; governmental
organizations; dealers in stocks and securities; traders in securities that elect to
use the mark-to-market method of accounting for their securities; regulated
investment companies; real estate investment trusts; controlled foreign corporations;
passive foreign investment companies; corporations that accumulate earnings to avoid
U.S. federal income tax; entities subject to the U.S. anti-inversion rules; certain U.S.
expatriates or former citizens or long-term residents of the United States; or, except
as noted below, holders that own or have owned (directly, indirectly or constructively)
five percent or more of Majesco common stock (by vote or value);
|
|
|
●
|
tax
consequences to Majesco shareholders holding their shares of Majesco common stock as
part of a hedging, constructive sale or conversion, straddle or other risk reduction
transaction;
|
|
|
●
|
tax
consequences to Majesco shareholders whose shares of Majesco common stock constitute
qualified small business stock within the meaning of Section 1202 of the Code;
|
|
|
●
|
tax
consequences to Majesco shareholders that received their shares of Majesco common stock
in a compensatory transaction, through a tax qualified retirement plan or pursuant to
the exercise of options, RSUs or warrants;
|
|
|
●
|
tax
consequences to Majesco shareholders who own an equity interest in Parent following the
Merger;
|
|
|
●
|
tax
consequences to U.S. Holders whose “functional currency” is not the U.S.
dollar;
|
|
|
●
|
tax
consequences to Majesco shareholders who hold their Majesco common stock through a bank,
financial institution or other entity, or a branch thereof, located, organized or resident
outside the United States;
|
|
|
●
|
tax
consequences to Majesco shareholders subject to special tax accounting rules as a result
of any item of gross income with respect to the shares of Majesco common stock being
taken into account in an “applicable financial statement” (as defined in
Section 451(b) of the Code);
|
|
|
●
|
the
U.S. federal estate, gift or alternative minimum tax consequences, if any, as a result
of the Merger;
|
|
|
●
|
any
state, local or non-U.S. tax consequences as a result of the Merger; or
|
|
|
●
|
tax
consequences to Majesco shareholders that do not consent in favor of the Merger and that
properly demand appraisal of their shares under Chapter 13 of the CGCL of the Code or
that entered into a support agreement as part of the Merger and other transactions
described in this consent solicitation statement.
|
If
a partnership (including an entity or arrangement, domestic or non-U.S., treated as a partnership for U.S. federal income
tax purposes) is a beneficial owner of shares of Majesco common stock, then the tax treatment of a partner in such partnership
will generally depend upon the status of the partner and the activities of the partner and the partnership. Partnerships holding
shares of Majesco common stock and partners therein should consult their tax advisors regarding the consequences of the Merger.
We
have not sought, and do not intend to seek, any ruling from the IRS with respect to the statements made and the conclusions reached
in the following summary, and no assurance can be given that the IRS will agree with the views expressed herein, or that a court
will not sustain any challenge by the IRS in the event of litigation.
THE
FOLLOWING SUMMARY IS FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR CAREFUL TAX PLANNING AND ADVICE. WE URGE
YOU TO CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO YOU IN CONNECTION WITH THE MERGER IN LIGHT
OF YOUR OWN PARTICULAR CIRCUMSTANCES, INCLUDING FEDERAL ESTATE, GIFT AND OTHER NON-INCOME TAX CONSEQUENCES, AND TAX
CONSEQUENCES UNDER STATE, LOCAL OR NON-U.S. TAX LAWS.
U.S.
Holders
For
purposes of this discussion, a “U.S. Holder” is a beneficial owner of shares of Majesco common stock that is for U.S.
federal income tax purposes:
|
|
●
|
an
individual who is a citizen or resident of the United States;
|
|
|
●
|
a
corporation, or other entity taxable as a corporation, created or organized in or under
the laws of the United States or any state thereof or the District of Columbia;
|
|
|
●
|
an
estate, the income of which is subject to U.S. federal income taxation regardless of
its source; or
|
|
|
●
|
a
trust (1) that is subject to the primary supervision of a court within the United
States and the control of one or more United States persons as defined in Section 7701(a)(30)
of the Code; or (2) that has a valid election in effect under applicable Treasury
Regulations to be treated as a U.S. person.
|
The
receipt of cash by a U.S. Holder in exchange for shares of Majesco common stock pursuant to the Merger will be a taxable transaction
for U.S. federal income tax purposes. In general, such U.S. Holder’s gain or loss will be equal to the difference, if any,
between the amount of cash received and the U.S. Holder’s adjusted tax basis in the shares of Majesco common stock surrendered
pursuant to the Merger. Gain or loss must be determined separately for each block of shares (that is, shares of Majesco common
stock acquired at the same cost in a single transaction). A U.S. Holder’s adjusted tax basis generally will equal the amount
that such U.S. Holder paid for the shares of Majesco common stock. A U.S. Holder’s gain or loss on the disposition of shares
of Majesco common stock will generally be characterized as capital gain or loss. Any such gain or loss will be long-term capital
gain or loss if such U.S. Holder’s holding period in such shares is more than one year at the time of the completion of
the Merger. A reduced tax rate on capital gain generally will apply to long-term capital gain of a non-corporate U.S.
Holder (including individuals). The deductibility of capital losses is subject to limitations.
A
surtax of up to 3.8% applies to so-called “net investment income” of certain U.S. citizens and residents,
and to undistributed “net investment income” of certain estates and trusts. Net investment income generally includes
any gain recognized on the receipt of cash in exchange for shares of common stock pursuant to the Merger. U.S. Holders should
consult their own tax advisors regarding the applicability of this tax to any gain recognized pursuant to the Merger.
Non-U.S. Holders
The
following is a summary of the material U.S. federal income tax consequences that will apply to you if you are
a Non-U.S. Holder. The term “Non-U.S. Holder” means a beneficial owner of Majesco common stock
that is, for U.S. federal income tax purposes, not a U.S. Holder.
Special
rules, not discussed herein, may apply to certain Non-U.S. Holders, such as:
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certain
U.S. expatriates or former citizens or long-term residents of the United States;
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controlled
foreign corporations;
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passive
foreign investment companies;
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corporations
that accumulate earnings to avoid U.S. federal income tax; and
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pass-through
entities, or investors in such entities.
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Any
gain realized by a Non-U.S. Holder pursuant to the Merger generally will not be subject to U.S. federal income tax unless:
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the
gain is effectively connected with a trade or business of such Non-U.S. Holder
in the United States (and, if required by an applicable income tax treaty, is attributable
to a permanent establishment or fixed base maintained by such Non-U.S. Holder
in the United States), in which case such gain generally will be subject to U.S. federal
income tax at rates generally applicable to U.S. persons, and, if the Non-U.S. Holder
is a corporation, such gain may also be subject to the branch profits tax at a rate of
30% (or a lower rate under an applicable income tax treaty);
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such Non-U.S. Holder
is an individual who is present in the United States for 183 days or more in the taxable
year of disposition of shares of Majesco common stock pursuant to the Merger, and certain
other specified conditions are met, in which case such gain will be subject to U.S. federal
income tax at a flat rate of 30% (or a lower rate under an applicable income tax treaty),
which gain may be offset by certain U.S. source capital losses of such Non-U.S. Holder,
provided that the Non-U.S. Holder has timely filed U.S. federal income tax
returns with respect to such losses; or
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Majesco
is or has been a “United States real property holding corporation” as such
term is defined in Section 897(c) of the Code (“USRPHC”), at any time
within the shorter of the five-year period preceding the Merger or such Non-U.S. Holder’s
holding period with respect to the applicable shares of Majesco common stock (the “Relevant
Period”) and, if shares of Majesco common stock are regularly traded on an established
securities market (within the meaning of Section 897(c)(3) of the Code), such Non-U.S. Holder
owns directly or is deemed to own pursuant to attribution rules more than 5% of Majesco
common stock at any time during the Relevant Period, in which case such Non-U.S. Holder’s
proceeds received on the disposition of shares will generally be subject to withholding
at a rate of 15% and such gain will be subject to U.S. federal income tax at rates generally
applicable to U.S. persons (as described in the first bullet point above), except that
the branch profits tax will not apply. Although there can be no assurances in this regard,
we believe that we are not, and have not been, a USRPHC at any time during the five-year
period preceding the Merger.
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Information
Reporting and Backup Withholding
Information
reporting and backup withholding (currently, at a rate of 24%) may apply to the proceeds received by a Majesco shareholder pursuant
to the Merger. Backup withholding generally will not apply to (1) a U.S. Holder that furnishes a correct taxpayer identification
number and certifies that such holder is not subject to backup withholding on IRS Form W-9 (or a substitute or successor
form) or (2) a Non-U.S. Holder that (i) provides a certification of such holder’s foreign status on
the appropriate series of IRS Form W-8 (or a substitute or successor form) or (ii) otherwise establishes an exemption
from backup withholding. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules
will be allowed as a refund or a credit against the holder’s U.S. federal income tax liability, provided that the required
information is timely furnished to the IRS.
The
foregoing summary does not discuss all aspects of U.S. federal income taxation that may be relevant to particular holders of Majesco
common stock. Majesco shareholders should consult their own tax advisors as to the particular tax consequences to them of exchanging
their Majesco common stock for cash pursuant to the Merger under any federal, state, local or non-U.S. tax laws.
Withholding
on Foreign Entities
Generally
sections 1471 through 1474 of the Code (“FATCA”), impose a U.S. federal withholding tax of 30% on certain payments
made to a “foreign financial institution” (as specially defined under those rules) unless such institution enters
into an agreement with the U.S. government to withhold on certain payments and to collect and provide to the U.S. tax authorities
substantial information regarding certain U.S. account holders of such institution. Although the Code provides that FATCA withholding
generally also will apply to payments of gross proceeds from sales or other dispositions of stock, in 2018 the U.S. Treasury Department
released proposed regulations on which taxpayers may generally rely that eliminate the federal withholding tax applicable to such
gross proceeds.
Prospective
investors are encouraged to consult with their own tax advisors regarding the possible implications of FATCA on the disposition
of Majesco common stock pursuant to the Merger.
Regulatory
Approvals Required for the Merger
General
Majesco
and Parent have agreed to take all action necessary to comply with all regulatory notification requirements, and, subject to certain
limitations, to obtain all regulatory approvals required to consummate the Merger and the other transactions contemplated by the
Merger Agreement. These regulatory requirements include those under the HSR Act, approval by the Reserve Bank of India and receipt
of a No Objection Certificate from the Indian tax authorities.
HSR
Act and U.S. Antitrust Matters
Under
the HSR Act and the rules promulgated thereunder, certain acquisitions may not be completed until information has been furnished
to the Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”),
and the applicable HSR Act waiting period has expired or been terminated. The waiting period under the HSR Act is 30 calendar
days, unless the waiting period is terminated earlier or extended by a request for additional information and documentary material.
The Merger is subject to the provisions of the HSR Act and therefore cannot be completed until each of Majesco and Parent file
a notification and report form with the FTC and the DOJ under the HSR Act and the applicable waiting period has expired or been
terminated. Majesco and Thoma Bravo made the necessary filings with the FTC and the Antitrust Division of the DOJ on July 31,
2020.
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A.
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On
August 12, 2020 the FTC granted early termination of the waiting period under the HSR
Act with respect to the Merger. With early termination granted under the HSR Act, the
transaction has now received all applicable antitrust regulatory approvals. No additional
antitrust approvals are required.
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At
any time before or after consummation of the Merger, notwithstanding the termination or expiration of the waiting period under
the HSR Act, the FTC or the DOJ could take such action under antitrust laws as they deem necessary or desirable in the public
interest, including seeking to enjoin the completion of the Merger, seeking divestiture of substantial assets of the parties,
or requiring the parties to license or hold separate assets or terminate existing relationships and contractual rights. At any
time before or after the completion of the Merger, any state or foreign jurisdiction could take such action under the antitrust
laws as they deem necessary or desirable in the public interest. Such action could include seeking to enjoin the completion of
the Merger or seeking divestiture of substantial assets of the parties. Private parties may also seek to take legal action under
the antitrust laws under certain circumstances. We cannot be certain that a challenge to the Merger will not be made or that,
if a challenge is made, we will prevail.
RBI
Approval
Under
Indian foreign exchange laws, the Reserve Bank of India has powers to regulate, prohibit, restrict or regulate the transfer or
issuance of any foreign security by a person resident in India. With respect to direct investments by Indian parties outside of
India, an Indian entity can transfer the shares of its offshore subsidiary by way of sale to any person resident outside India
without the consent of the Reserve Bank of India if certain conditions are satisfied, including a sale of the shares through a
stock exchange where the shares of the overseas subsidiary are listed. As the Divestment of Majesco Limited’s shares in
Majesco involves a transfer to a foreign investor pursuant to a merger and not through a sale on the stock exchange where its
shares are listed, the consent of the Reserve Bank of India is required to be obtained as a condition to the Divestment. Majesco
Limited filed the application for consent with the Reserve Bank of India on July 31, 2020. While there is no fixed time within
which the Reserve Bank of India is expected to process the application, the Reserve Bank of India typically takes two to three
months from the date of application to communicate its decision on the application. There can be no assurances, however, that
the Reserve Bank of India will approve the Divestment on such timeline or at all.
No
Objection Certificate
Under
Indian tax laws, permission is required from the Indian tax authorities prior to transfer of certain assets, including shares
in other companies, if there are any pending proceedings against the transferring entity. Pursuant to such requirement, Majesco
filed an application to obtain a No Objection Certificate from the Indian tax authorities on July 21, 2020, prior to signing the
Merger Agreement. While there is no fixed time within which the Indian tax authorities are expected to process the application,
the expected timeline for receipt of No Objection Certificate is up to two months from the date of the application. There can
be no assurances, however, that the Indian tax authorities will deliver the No Objection Certificate on such timeline or at all.
Other
Regulatory Approvals
One
or more governmental agencies may impose a condition, restriction, qualification, requirement or limitation when it grants the
necessary approvals and consents. Third parties may also seek to intervene in the regulatory process or litigate to enjoin or
overturn regulatory approvals, any of which actions could significantly impede or even preclude obtaining required regulatory
approvals. There is currently no way to predict how long it will take to obtain all of the required regulatory approvals or whether
such approvals will ultimately be obtained and there may be a substantial period of time between the approval by shareholders
and the completion of the Merger.
Although
we expect that all required regulatory clearances and approvals will be obtained, we cannot assure you that these regulatory clearances
and approvals will be timely obtained, obtained at all or that the granting of these regulatory clearances and approvals will
not involve the imposition of additional conditions on the completion of the Merger, including the requirement to divest assets,
or require changes to the terms of the Merger Agreement. These conditions or changes could result in the conditions to the Merger
not being satisfied.
FUTURE
SHAREHOLDER PROPOSALS
Beginning
at the Effective Time, there will be no public participation in Majesco shareholder meetings.
WHERE
YOU CAN FIND MORE INFORMATION
Majesco
files annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet
site that contains reports and other information regarding issuers that file electronically with the SEC. Majesco filings with
the SEC are available to the public through the SEC’s web site located at www.sec.gov.
If
you have questions about this consent solicitation statement or the transactions after reading this consent solicitation statement,
you may contact Broadridge at shareholder@broadridge.com and (888) 789-8409.
Majesco
has not authorized anyone to give you any information or to make any representation about the transactions or any of the parties
involved that differs from or adds to the information contained in this consent solicitation statement or in the documents Majesco
has publicly filed with the SEC. Therefore, if anyone should give you any different or additional information, you should not
rely on it.
The
information contained in this consent solicitation statement speaks only as of the date indicated on the cover of this consent
solicitation statement unless the information specifically indicates that another date applies.
You
may request copies of this consent solicitation statement and any of the documents incorporated by reference into this consent
solicitation statement or other information concerning Majesco, without charge, by written or telephonic request directed to Majesco’s
Corporate Secretary at Majesco, Attention: Corporate Secretary, 412 Mount Kemble Ave., Suite 110C, Morristown, NJ 07960 Telephone:
(973) 461-5200.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” information filed with it, which means that Majesco can disclose important
information to you by referring you to the documents containing such information. The information incorporated by reference is
an important part of this consent solicitation statement, and information filed later by us with the SEC will automatically update
and supersede this information.
Majesco
incorporates by reference the documents listed below and, with respect to this consent solicitation statement, any future filings
that Majesco makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act:
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Our
Annual Report on Form 10-K for the fiscal year ended March 31, 2020, filed with the SEC
on July 8, 2020;
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Our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, filed with the SEC
on August 14, 2020;
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Our
Definitive Proxy Statement on Schedule 14A for 2020 Annual Meeting of Shareholders, filed
with the SEC on July 29, 2020;
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All
documents and reports filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
consent solicitation statement and prior to the receipt of Majesco’s shareholder approval will also be deemed to be incorporated
by reference in this consent solicitation statement, and only for the purpose of this consent solicitation statement, from the
date of filing of such documents or reports, except as to any portion of any future annual or quarterly reports, current reports
or proxy statements which is not deemed to be filed under those sections. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this consent solicitation statement will be deemed to be modified or superseded for
purposes of this consent solicitation statement, and only for the purposes of this consent solicitation statement, to the extent
that any statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference in this consent solicitation statement modifies or supersedes such statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of this consent solicitation statement.
Annex A
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Among
MAJESCO,
MAGIC INTERMEDIATE, LLC
and
MAGIC MERGER SUB, INC.
Dated as of August 8, 2020
TABLE OF CONTENTS
Exhibits
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of August 8, 2020, is entered into by and among
Majesco, a California corporation (the “Company”), Magic Intermediate, LLC, a Delaware limited liability
company (“Parent”) and Magic Merger Sub, Inc., a Delaware corporation and a wholly owned Subsidiary of
Parent (“Merger Sub” and, together with the Company and Parent, the “Parties”
and each, a “Party”).
RECITALS
WHEREAS, the Parties
entered into that certain Agreement and Plan of Merger, dated as of July 20, 2020 (the “Original Agreement”)
and in accordance with Section 10.3(a) of the Original Agreement desire to amend and restate the Original Agreement in its entirety
on the terms and conditions set forth herein, and Parent desires to acquire the Company on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, the Parties
intend that, on the terms and subject to the conditions set forth in this Agreement, Merger Sub shall merge with and into the Company
(the “Merger”), with the Company surviving the Merger, pursuant to the provisions of the California Corporations
Code, as amended (the “CCC”);
WHEREAS, the board
of directors of the Company (the “Company Board”) has unanimously (a) approved and declared advisable
this Agreement and the transactions contemplated by this Agreement, including the Merger (the “Transactions”),
on the terms and subject to the conditions set forth in this Agreement, (b) determined that this Agreement and the Transactions,
are fair to, and in the best interests of, the Company and the holders of shares of the Company’s common stock, par value
$0.002 per share (the “Company Common Stock”), and (c) resolved to recommend that the holders of shares
of Company Common Stock approve this Agreement and the Transactions;
WHEREAS, the board
of directors of Merger Sub has unanimously (a) approved this Agreement and the Transactions on the terms and subject to the conditions
set forth in this Agreement and (b) resolved to recommend that the holders of shares of Merger Sub’s common equity approve
this Agreement and the consummation of the Transactions; and Parent, as the sole shareholder of Merger Sub, has approved this Agreement
and the Transactions upon authorization of the board of directors of Parent (the “Parent Board”);
WHEREAS, the board
of directors of the Principal Stockholder has unanimously (a) approved the disinvestment of the Principal Stockholder’s entire
share of the Company Common Stock (the “Principal Stockholder Divestment”) and taken on record this Agreement,
(b) determined that the consideration to be received by the Principal Stockholder in relation to the Principal Stockholder Divestment
is fair, (c) resolved to recommend that the holders of shares of the Principal Stockholder’s common stock approve the Principal
Stockholder Divestment and (d) resolved to duly organize and complete the Principal Stockholder Postal Ballot to consider and vote
upon the Merger and the Principal Stockholder Divestment;
WHEREAS, the Company,
Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement
and set forth certain conditions to the Merger;
WHEREAS, certain
shareholders of the Principal Stockholder, the Principal Stockholder, the Company and Parent entered into that certain Support
Agreement, dated as of July 20, 2020 (the “Original Promoter Support Agreement”), and concurrently with
the execution of this Agreement, and as a condition and material inducement to Parent’s willingness to enter into this Agreement,
such shareholders of the Principal Stockholder will execute and deliver to Parent and Merger Sub an amended and restated Original
Promoter Support Agreement, pursuant to which such shareholders will agree, upon the terms and subject to the conditions set forth
therein, to vote in favor of, and support the Principal Stockholder Divestment;
WHEREAS, Principal
Stockholder, the Company, Merger Sub and Parent entered into that certain Support Agreement, dated as of July 20, 2020 (the “Principal
Stockholder Support Agreement”), and concurrently with the execution of this Agreement, the Principal Stockholder
will execute and deliver to Parent and Merger Sub an amendment to the Principal Stockholder Support Agreement (the “Support
Agreement”), pursuant to which Principal Stockholder will agree, upon the terms and subject to the conditions set
forth therein, to act by written consent substantially in the form attached hereto as Exhibit A (the “Written
Consent”) to approve this Agreement and the Transactions in accordance with Section 603 and Section 152 of the CCC;
and
WHEREAS, the Company
and the Guarantors entered into that certain Limited Guaranty, dated as of July 20, 2020 (the “Limited Guaranty”)
and in accordance with Section 9 of the Limited Guaranty desire to amend the Limited Guaranty, and concurrently with the execution
of this Agreement, and as a condition and material inducement to the Company’s willingness to enter into this Agreement,
Parent has delivered to the Company an amendment to the Limited Guaranty entered into by the Guarantors with respect to certain
obligations of the Parent under this Agreement.
NOW, THEREFORE,
in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth in this Agreement,
the Parties agree as follows:
Article
I
Definitions
1.1 Specific
Definitions. For the purposes of this Agreement, the terms defined in Section 10.2 have the meanings specified
or referred to therein.
1.2 Other
Terms. Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such
meaning throughout this Agreement.
Article
II
The Merger
2.1 The
Merger. On the terms and subject to the conditions set forth in this Agreement, (a) at the Effective Time, Merger Sub shall
be merged with and into the Company in accordance with the CCC and the separate corporate existence of Merger Sub shall thereupon
cease, (b) the Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “Surviving
Corporation”) and from and after the Effective Time, shall be a wholly owned subsidiary of Parent and the separate
corporate existence of the Company with all of its rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger as provided in the CCC, and (c) the Merger shall have such other effects as provided in the CCC.
2.2 Closing.
The closing of the Merger (the “Closing”) shall take place at the offices of Sheppard, Mullin, Richter
& Hampton, 30 Rockefeller Plaza, New York, NY 10112, at 9:00 a.m. EST three (3) Business Days following the day on which the
last to be satisfied or waived of the conditions set forth in Article VIII (other than those conditions that by their
nature are to be satisfied or waived at the Closing (so long as such conditions are reasonably capable of being satisfied), but
subject to the satisfaction or waiver of those conditions) shall be satisfied or waived in accordance with this Agreement or at
such other date, time or place (or by means of remote communication) as the Company and Parent may mutually agree in writing (the
date on which the Closing actually occurs, the “Closing Date”).
2.3 Effective
Time. As soon as practicable following the Closing, and on the Closing Date, the Company and Parent will cause a certificate
of merger relating to the Merger (the “Certificate of Merger”) to be executed, acknowledged and filed
with the Secretary of State of the State of California as provided in the CCC. The Merger shall become effective at the time when
the Certificate of Merger has been duly filed with and accepted by the Secretary of State of the State of California or at such
later date and time as may be agreed by the Parties in writing and specified in the Certificate of Merger (such date and time,
the “Effective Time”).
2.4 The
Articles of Incorporation of the Surviving Corporation. At the Effective Time, the articles of incorporation of the Surviving
Corporation (the “Charter”) shall be amended in its entirety to read as set forth in Exhibit B
hereto, until thereafter amended as provided therein or by applicable Law.
2.5 The
Bylaws of the Surviving Corporation. The Parties shall take all actions necessary so that the bylaws of Merger Sub in effect
immediately prior to the Effective Time (except as to the name of the Surviving Corporation) shall be the bylaws of the Surviving
Corporation (the “Bylaws”), until thereafter amended as provided therein or by applicable Law.
2.6 Directors
of the Surviving Corporation. The Parties shall take all actions necessary so that the board of directors of Merger Sub at
the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors
have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter
and the Bylaws.
2.7 Officers
of the Surviving Corporation. The Parties shall take all actions necessary so that the officers of the Company at the Effective
Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the
Bylaws.
Article
III
Merger Consideration; Effect of the Merger on Capital Stock
3.1 Merger
Consideration; Conversion of Shares of Company Common Stock. At the Effective Time, by virtue of the Merger and without any
action on the part of the Parties or any holder of any capital stock of the Company, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time other than Excluded Shares (such shares of Company Common Stock, the “Eligible
Shares”) shall be converted into the right to receive cash in the amount of $16.00 per share, subject to any required
withholding of Taxes (the “Merger Consideration”).
3.2 Conversion
of Shares of Company Common Stock. By virtue of the Merger and without any action on the part of the Parties or any holder
of any capital stock of the Company, all of the Eligible Shares shall represent the right to receive the Merger Consideration pursuant
to this Article III, shall cease to be outstanding, shall be cancelled and shall cease to exist as of the Effective
Time, and each certificate formerly representing any of the Eligible Shares (each, a “Certificate”) and
each book-entry account formerly representing any non-certificated Eligible Shares (each, a “Book-Entry Share”)
shall thereafter represent only the right to receive the Merger Consideration, without interest.
3.3 Cancellation
of Excluded Shares. Each Excluded Share shall, by virtue of the Merger and without any action on the part of the Parties or
any holder of any Excluded Share, cease to be outstanding, be cancelled without payment of any consideration therefor and shall
cease to exist, subject to any rights the holder thereof may have pursuant to Section 4.7.
3.4 Merger
Sub. At the Effective Time, by virtue of the Merger and without any action on the part of the Parties, each share of common
stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted
into one share of common stock, par value $0.002 per share, of the Surviving Corporation, which shall constitute the only outstanding
shares of capital stock of the Surviving Corporation immediately following the Effective Time.
3.5 Treatment
of Equity Awards.
(a) Company
Options.
(i) Unless
otherwise agreed to by the Parties, at the Effective Time, each outstanding vested and unvested Company Option, shall, automatically
and without any action on the part of the holder thereof, be cancelled in exchange for only the right to receive, on the first
payroll date after the Closing Date an amount in cash, without interest, equal to the product of (A) the total number of shares
of Company Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (B) the excess, if
any, of (x) the Merger Consideration over (y) the exercise price per share of Company Common Stock of such Company Option (less
applicable Taxes required to be withheld with respect to such payment). Each outstanding Company Option which has an exercise price
per share that is greater than or equal to the Merger Consideration shall automatically be cancelled at the Effective Time and
forfeited for no consideration or payment.
(ii) The
Company agrees to take all action reasonably necessary to effectuate the cancellation of Company Options in accordance with this
Section 3.5(a) upon the Effective Time and to give effect to this Section 3.5(a) (including the satisfaction
of the requirements of Rule 16b-3(e) under the Exchange Act). The cancellation of a Company Option as provided in this Section
3.5(a) shall be deemed the termination, and satisfaction in full, of any and all rights the holder had or may have had
in respect of such Company Option.
(b) Company
RSUs. Unless otherwise agreed to by the Parties, at the Effective Time, each outstanding Company RSU shall, automatically and
without any required action on the part of the holder thereof, be cancelled in exchange for only the right to receive, on the first
payroll date after the Closing Date an amount in cash, without interest, equal to the product of (i) the number of shares of Company
Common Stock subject to such Company RSU immediately prior to the Effective Time, multiplied by (ii) the Merger Consideration (less
applicable Taxes required to be withheld with respect to such payment).
(c) Company
ESPP. As soon as practicable following July 20, 2020, the Company shall have taken and continue to take all actions with respect
to the Company ESPP that are necessary to provide that: (i) with respect to the offering period in effect as of July 20, 2020
(the “Company ESPP Offering Period”), no participant may (A) increase the percentage amount of his or
her payroll deduction election from that in effect on July 20, 2020 for the Company ESPP Offering Period or (B) make separate non-payroll
contributions to the Company ESPP on or following July 20, 2020, other than as required by applicable Law; (ii) prior to the Effective
Time, subject to the consummation of the Merger, the Company ESPP shall terminate, effective immediately on the earlier of
the Effective Time and September 30, 2020; (iii) immediately prior to the Effective Time, if it occurs prior to September
30, 2020, any then-outstanding rights under the Company ESPP shall terminate and the Company shall distribute to each Company ESPP
participant all of his or her accumulated payroll deductions (to the extent not yet applied to the purchase of shares of Company
Common Stock) with respect to the Company ESPP Offering Period then in effect; and (iv) following the purchase of Company
Common Stock pursuant to the Company ESPP Offering Period (if any), the Company ESPP shall be suspended and no new offering period
shall be commenced under the Company ESPP after the earlier of the Effective Time and September 30, 2020. No individual who is
not participating in the Company ESPP with respect to the Company ESPP Offering Period as of July 20, 2020 will be allowed to commence
participation in the Company ESPP following July 20, 2020.
(d) Company
Equity Payments. Any payments to which holders of Company Options and Company RSUs (collectively, the “Company
Equity Awards”) are entitled to pursuant to Section 3.5(a) and Section 3.5(b), respectively
(collectively, the “Company Equity Payments”) shall be made through the Surviving Corporation’s
payroll on the first payroll date after the Closing Date and in accordance with Section 3.5(a) and Section
3.5(b).
(e) Company
Actions. At or prior to the Effective Time, the Company, the Company Board and, if necessary or appropriate, the compensation
committee of the Company Board, as applicable, shall adopt any resolutions and take any actions that are necessary to (i) effectuate
the treatment of the Company Equity Awards pursuant to Section 3.5(a) and Section 3.5(b) and (ii) cause
the Stock Plan and the Company ESPP to terminate at or prior to the Effective Time. The Company shall take all actions necessary
to ensure that from and after the Effective Time neither Parent nor the Surviving Corporation will be required to deliver shares
of Company Common Stock or other capital stock of the Company to any Person pursuant to or in settlement of Company Equity Awards.
The Company shall provide to Parent or its counsel for review drafts of any documentation prepared by the Company or its counsel
to effectuate the foregoing and shall consider in good faith Parent’s comments thereto.
Article
IV
Delivery of Merger Consideration; Procedures for Surrender
4.1 Paying
Agent. At the Effective Time, or as promptly as possible thereafter, Parent shall deposit or cause to be deposited with a paying
agent selected by the Company and approved by Parent (such approval not to be unreasonably withheld, delayed or conditioned) (the
“Paying Agent”), for the benefit of the holders of Eligible Shares, an aggregate amount of cash necessary
for the Paying Agent to make payments under Section 3.1 (such cash being hereinafter referred to as the “Exchange
Fund”). The paying agent agreement pursuant to which the Company shall appoint the Paying Agent shall be in form
and substance reasonably acceptable to Parent attached hereto as Exhibit C. The Exchange Fund shall not be used for
any purpose other than a purpose expressly provided for in this Agreement. The Exchange Fund may be invested by the Paying Agent
as reasonably directed by Parent; provided, however, that any such investment shall in all events be limited
to (i) direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the United
States government, in commercial paper rated P-1 or A-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s
Corporation, respectively, (ii) certificates of deposit or bank repurchase agreements of commercial banks with capital exceeding
$5 billion or (iii) AAA rated 2A-7 fixed NAV money market funds (or those of similar quality), or a combination of the foregoing
clauses (i), (ii) and (iii), and, in any such case, no such instrument shall have a maturity exceeding three (3) months. To the
extent that there are losses with respect to such deposits, a default of an applicable bank or for any other reason any amount
in the Exchange Fund is below that required to make prompt payment of the aggregate Merger Consideration and the other payments
contemplated by this Article IV, Parent shall or shall cause the Surviving Corporation to promptly replace or restore,
or cause the replacement or restoration, of the cash in the Exchange Fund lost through such investments or other events so as to
ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make the payment of the
aggregate Merger Consideration contemplated by this Article IV. Any interest and other income resulting from such
deposit may become part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.1
may, at the discretion of Parent, be promptly returned to Parent or the Surviving Corporation.
4.2 Procedures
for Surrender.
(a) With
respect to Certificates, as promptly as reasonably practicable after the Effective Time (and in any event within three (3) Business
Days thereafter), the Surviving Corporation shall cause the Paying Agent to provide or make available to each holder of record
of each such Certificate (i) notice advising such holders of the effectiveness of the Merger, (ii) a letter of transmittal in customary
form and reasonably approved by the Company, which shall specify that delivery shall be effected, and risk of loss and title to
a Certificate shall pass, only upon delivery of the Certificate (or affidavit of loss in lieu of a Certificate as provided in Section
4.5) to the Paying Agent (the “Letter of Transmittal”), and (iii) instructions for surrendering
a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 4.5) to the Paying Agent (including
instructions with respect to the delivery to the Paying Agent of IRS Form W-9 or IRS Form W-8, as applicable). Upon surrender to
the Paying Agent of a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 4.5) together
with a duly executed and completed Letter of Transmittal and such other documents as may reasonably be required pursuant to such
instructions, the Surviving Corporation shall cause the Paying Agent to promptly (and in any event, within three (3) Business Days
thereafter) provide or make available to each holder of record of any such Certificate in exchange therefore a check in the amount
(after giving effect to any required Tax withholdings as provided in Section 4.6) of (A) the number of Eligible Shares
represented by such Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 4.5) multiplied
by (B) the Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled.
(b) With
respect to each Book-Entry Share not held through DTC (each, a “Non-DTC Book-Entry Share”), promptly
after the Effective Time (and in any event within three (3) Business Days thereafter), the Surviving Corporation shall cause the
Paying Agent to provide or make available to each holder of record of a Non-DTC Book-Entry Share (i) a notice advising such holders
of the effectiveness of the Merger and (ii) a check in the amount (after giving effect to any required Tax withholdings as provided
in Section 4.6) of (A) the number of Non-DTC Book-Entry Shares held by such holder multiplied by (B) the Merger
Consideration, and the Non-DTC Book-Entry Shares so surrendered shall forthwith be cancelled.
(c) With
respect to Book-Entry Shares held through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent
and DTC to ensure that the Paying Agent will transmit to DTC or its nominees on the Closing Date (or if Closing occurs after 10:30
a.m. EST on the Closing Date, on the first Business Day after the Closing Date), upon surrender of Eligible Shares held of record
by DTC or its nominees in accordance with DTC’s customary surrender procedures, the Merger Consideration for each such Eligible
Share that each such holder has the right to receive pursuant to this Article IV.
(d) No
interest will be paid or accrued on any amount payable for Eligible Shares pursuant to this Article IV.
4.3 Transfers.
(a) From
and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of the Company’s
capital stock that were outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of
Certificates or Book-Entry Shares shall cease to have any rights with respect to such shares of the Company’s capital stock
except as otherwise provided herein or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(b) With
respect to Certificates, in the event of a transfer of ownership of any Certificate that is not registered in the transfer books
of the Company as of the Effective Time, a check for the cash (after giving effect to any required Tax withholdings as provided
in Section 4.6) to be paid upon due surrender of the Certificate, may be issued or paid to such a transferee if the
Certificate is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to
evidence that any applicable stock transfer Taxes have been paid or are not applicable, in each case, in form and substance, reasonably
satisfactory to the Paying Agent. Until surrendered as contemplated by this Section 4.3, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable pursuant to
this Article IV.
(c) With
respect to Book-Entry Shares, payment of the Merger Consideration, payable pursuant to this Article IV, shall only
be made to the Person in whose name such Book-Entry Shares are registered in the stock transfer books of the Company as of the
Effective Time.
4.4 Termination
of Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any deposit of the Exchange Fund) that remains
unclaimed by the holders of the Eligible Shares one year after the Effective Time shall be delivered to Parent. Any holder of Eligible
Shares who has not theretofore complied with this Article IV shall thereafter look only to Parent or the Surviving
Corporation for delivery of the Merger Consideration that such holder has the right to receive pursuant to this Article IV.
Notwithstanding anything to the contrary in 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 the Company’s capital stock for any amount properly delivered to
a public official pursuant to applicable abandoned property, escheat or similar Laws. Any Merger Consideration remaining unclaimed
by the holders of Certificates or Book-Entry Shares immediately prior to such time as such amounts would otherwise escheat to,
or become property of, any Governmental Entity will, to the extent permitted by applicable Law, become the property of the Surviving
Corporation or an Affiliate thereof designated by the Surviving Corporation, free and clear of any claim or interest of any Person
previously entitled thereto.
4.5 Lost,
Stolen or Destroyed Certificates. In the event that any Certificate shall have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person
of a bond in customary amount and upon such terms as may be required as indemnity against any claim that may be made against it
with respect to such Certificate, the Paying Agent will, subject to Section 4.7 in respect of any Certificate representing
Excluded Shares, issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration payable pursuant to
this Article IV, had such lost, stolen or destroyed Certificate been surrendered.
4.6 Withholding.
Each of Parent, the Paying Agent and the Surviving Corporation (and each of their Affiliates) shall be entitled to deduct and withhold
from any amounts otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect
to the making of such payment under the Code or any other applicable state, local or non-U.S. Law. To the extent that amounts are
so deducted and withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in
respect of which such deduction and withholding was made. Assuming the Company delivers the FIRPTA Certificate in accordance with
Section 7.21, the Parties acknowledge and agree that as of the date hereof no withholding is expected to apply to any portion of
the Merger Consideration to be paid to the Principal Stockholder.
4.7 Dissenting
Shares. Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time that are held by any holder who is entitled to demand and has properly demanded that the Company purchase
such shares for their fair market value in accordance with, and who complies in all respects with, Chapter 13 of the CCC (such
shares, “Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration
and will instead represent only a right to the payment amount as may be determined to be due with respect to such Dissenting Shares
pursuant to Chapter 13 of the CCC (subject to deduction for any required withholding Tax). If any such holder withdraws such holder’s
demand for purchase of such Dissenting Shares for fair market value pursuant to Chapter 13 of the CCC or becomes ineligible for
such payment, then the right of such holder to receive such payment in respect of such Dissenting Shares shall cease, and such
Dissenting Shares shall be deemed to have been converted, as of the Effective Time, into and will be exchangeable solely for the
right to receive the Merger Consideration, without interest and subject to deduction for any required withholding Tax. The Company
will give Parent prompt notice of any written demands received by the Company for the purchase of shares of Company Common Stock
pursuant to Chapter 13 of the CCC, attempted withdrawals of such demands and any other instruments served pursuant to the CCC and
received by the Company relating to demands to be paid the fair market value of Dissenting Shares, and Parent will have the right
to direct all negotiations and Proceedings with respect to such demands. The Company will not, except with the prior written consent
of Parent, voluntarily make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demands,
or approve any withdrawal of any such demands, or agree to do any of the foregoing.
Article
V
Representations and Warranties of the Company
Except as set forth in
the Company Reports filed with or furnished to the SEC and made publicly available prior to July 20, 2020 (excluding any disclosures
set forth under the captions “Risk Factors”, “Forward-Looking Statements” or in any other section to the
extent they are cautionary, predictive or forward-looking in nature, except to the extent such information consists of factual,
historical or current statements), or in the corresponding sections or subsections of the disclosure letter delivered to Parent
by the Company on July 20, 2020 (the “Company Disclosure Letter”), it being agreed that (i) for purposes
of the representations and warranties set forth in this Article V, disclosure of any item in any section or subsection
of the Company Disclosure Letter shall be deemed disclosure with respect to any other section or subsection (other than representations
and warranties in Section 5.2 [Capital Structure of the Company] to which the relevance of such item is reasonably
apparent on its face and (ii) nothing disclosed in the Company Reports will be deemed to modify or qualify the representations
and warranties set forth in Section 5.1 [Organization, Good Standing and Qualification], Section 5.2
[Capital Structure of the Company], Section 5.3 [Corporate Authority; Approval and Fairness], Section
5.4 [Governmental Filings; No Violations; Certain Contracts, Etc.], Section 5.6 [Absence of Certain
Changes], Section 5.11 [Takeover Statutes] and Section 5.19 [Brokers and Finders]),
the Company hereby represents and warrants, as of July 20, 2020 and as of the Closing, to Parent and Merger Sub that:
5.1 Organization,
Good Standing and Qualification. Each of the Company and its Subsidiaries is a legal entity duly organized, validly existing
and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power
and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. Each of
the Company and its Subsidiaries is qualified to do business and is in good standing as a foreign corporation or other legal entity
in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires
such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Section 5.1 of the Company Disclosure Letter sets forth
the name, jurisdiction of incorporation or organization (as applicable) and entity form of each Significant Subsidiary (as defined
in Rule 1.02(w) of Regulation S-X under the Exchange Act) of the Company. The Company has made available to Parent prior to July
20, 2020 true, complete and correct copies of the Organizational Documents of the Company and each of its Significant Subsidiaries.
Neither the Company nor any of its Subsidiaries is in violation of any provision of its Organizational Documents in any material
respect.
5.2 Capital
Structure of the Company.
(a) The
authorized capital stock of the Company consists of (i) 450,000,000 shares of Company Common Stock, of which 43,294,679 shares
were issued and outstanding as of the close of business on July 6, 2020 (the “Capitalization Date”),
and (ii) 50,000,000 shares of preferred stock, par value $0.002 per share, of which no shares were issued and outstanding as of
the close of business on the Capitalization Date. As of the Capitalization Date, 54,999 shares of Company Common Stock and no shares
of preferred stock were held by the Company as treasury shares. All of the outstanding shares of Company Common Stock have been
duly authorized and are validly issued, fully paid and nonassessable. The only shares of Company Common Stock reserved for issuance
as of the Capitalization Date, were (i) 1,973,775 shares of Company Common Stock reserved for issuance pursuant to awards available
for issuance under the Stock Plan and 2,908,756 shares of Company Common Stock reserved for issuance pursuant to the exercise of
equity awards issued and outstanding under the Stock Plan, (ii) 1,844,420 shares of Company Common Stock reserved for issuance
pursuant to purchases made under the Company ESPP (with estimated aggregate contributions of $10,000 that were received by the
Company for the current offering period pursuant to the ESPP), of which 9,023 shares will be issued prior to the Effective Time
with respect to purchases made under the ESPP for the most recently completed offering period, (iii) 370,000 shares of Company
Common Stock were reserved for issuance pursuant to the outstanding unvested Company RSUs, and (iv) 25,000 shares of Company Common
Stock reserved for issuance pursuant to the Company Warrant, all of which have been granted and are outstanding as of the Capitalization
Date. Each of the outstanding shares of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable and owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and
clear of any mortgage, pledge, lien, charge, security interest, adverse right or other encumbrance (an “Encumbrance,”
and any action of correlative meaning, to “Encumber”), and (A) not subject to any preemptive rights or
any restriction on the right to vote, voting trusts, proxies, transfer, sell or otherwise dispose of such outstanding capital stock
and (B) not subject to or issued in violation of any purchase option, warrant, call option, right of first refusal, right of first
offer, preemptive right, subscription right, grants or any similar right, commitment, understanding, restriction or arrangement
that obligate the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible
into or exchangeable for shares of capital stock of, or other equity or voting interest (including voting debt) in, the Company.
There are no accrued and unpaid dividends with respect to any outstanding shares of Company capital stock. The Company does not
have a stockholder rights plan in effect. The Company does not have outstanding any bonds, debentures, notes or other obligations
the holders of which have the right to vote (or convertible into or exchangeable or exercisable for shares of capital stock of
the Company, securities having the right to vote or other equity) with the stockholders of the Company on any matter. Since the
Capitalization Date through July 20, 2020, neither the Company or any of its Subsidiaries has (1) issued any Company Securities
or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities or (2) established
a record date for, declared, set aside for payment or paid any dividend on, or made any other distribution in respect of any Company
Securities. All grants of Company Equity Awards were validly issued and properly approved by the Company Board (or a committee
thereof) in accordance with the Stock Plan and applicable Law, including the applicable requirements of Nasdaq.
(b) Section
5.2(b) of the Company Disclosure Letter sets forth a correct and complete listing of all outstanding Company Equity Awards
as of the close of business on the Capitalization Date, setting forth the type of such Company Equity Award, the number of shares
of Company Common Stock subject to each Company Equity Award, the employee name of the holder of such Company Equity Award, the
grant date and vesting commencement date of such Company Equity Award, the expiration date of such Company Equity Awards, the exercise
price or purchase price of such Company Equity Award, the vesting schedules or vesting conditions or other restrictions with respect
to each Company Equity Award (including any acceleration provisions), and whether such Company Equity Award is intended to constitute
an “incentive stock option” within the meaning of Section 422 of the Code, as applicable. Except as set forth in Section
5.2(a) or Section 5.2(b) of the Company Disclosure Letter, or for any Company Equity Awards granted following
July 20, 2020 in accordance with the terms of this Agreement, there are no outstanding (i) shares of capital stock or voting securities
of the Company or its Subsidiaries, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable
for shares of capital stock, or cash payment in lieu of a share of capital stock, or voting securities of the Company or any of
its Subsidiaries, (iii) preemptive or other outstanding rights, options, rights of first refusal, rights of first offer, warrants,
conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments
or rights of any kind that obligate the Company or any of its Subsidiaries to issue, transfer, dispose or sell any shares of capital
stock, or cash payment in lieu of a share of capital stock, or other securities of the Company or any of its Subsidiaries, (iv)
restricted shares, performance shares, contingent value rights, “phantom” stock or similar securities, rights or pay
cash in lieu of a share of capital stock or rights with respect to the capital stock of the Company or any of its Subsidiaries,
(v) stock options intended to constitute “incentive stock options” within the meaning of Section 422 of the Code, or
(vi) securities or obligations convertible or exchangeable into or exercisable for, valued by reference to, directly or indirectly,
or giving any Person a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries, and no securities
or obligations evidencing such rights are authorized, issued or outstanding (the items described in the foregoing being referred
to collectively as the “Company Securities”). Upon any issuance of any shares of Company Common Stock
in accordance with the terms of the Stock Plan, such shares of Company Common Stock will be duly authorized, validly issued, fully
paid and nonassessable and free and clear of any Encumbrance. There are no voting trusts, proxies, or other similar agreements
or understandings to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound with respect to the disposition or voting of any shares of capital stock of the Company or any of its Subsidiaries.
(c) Section
5.2(c) of the Company Disclosure Letter sets forth (i) each of the Company’s Subsidiaries and the ownership interest
of the Company in each such Subsidiary and (ii) the Company’s or its Subsidiaries’ capital stock, equity interest or
other direct or indirect ownership interest in any other Person. Each outstanding share of capital stock of or voting security
in each Subsidiary of the Company is (i) owned, directly or indirectly, beneficially and of record, by the Company or one of its
Subsidiaries, (ii) duly authorized, validly issued, fully paid and non-assessable, (iii) free and clear of all Encumbrances, (iv)
not subject to any preemptive rights or any restriction on the right to vote, transfer, sell or otherwise dispose of such outstanding
capital stock or voting security and (v) not subject to or issued in violation of any purchase option, call option, right of first
refusal, right of first offer, preemptive right, subscription right or any similar right, commitment, understanding, restriction
or arrangement under any provision of applicable law, the organizational documents of such Subsidiary or any contract to which
such Subsidiary is a party or otherwise bound. There are no outstanding (A) securities convertible into or exchangeable or
exercisable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company; (B) options,
warrants or other rights or arrangements obligating the Company to acquire from any Subsidiary of the Company, or that obligate
any Subsidiary of the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible
into or exchangeable for, shares of capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary
of the Company; or (C) obligations of any Subsidiary of the Company to grant, extend or enter into any subscription, warrant,
right, convertible or exchangeable security, or other similar Contract relating to any capital stock of, or other equity or voting
interest (including any voting debt) in, such Subsidiary to any Person other than the Company or one of its Subsidiaries. There
are no outstanding or authorized equity appreciation, phantom stock, profits interests or similar rights with respect to any Subsidiary
of the Company.
(d) The
Company does not own or hold the right to acquire any equity securities, ownership interests or voting interests (including voting
debt) of, or securities exchangeable or exercisable therefor, or investments in, any other Person.
(e) Section
5.2(e) of the Company Disclosure Letter sets forth the maximum aggregate purchase price for Company Common Stock to be
purchased under the Company ESPP (assuming for this purpose that (i) the closing price of the shares of Company Common Stock on
the Nasdaq on the Capitalization Date is the Option Price (as defined in the Company ESPP) and (ii) no new offering period under
the Company ESPP commences following July 20, 2020 in accordance with Section 3.5(c)).
5.3 Corporate
Authority; Approval and Fairness.
(a) The
Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver
and perform its obligations under this Agreement and, subject only to the receipt of the Written Consent, to consummate the Transactions.
The execution, delivery and performance of this Agreement by the Company and the consummation of the Transactions have been duly
authorized by all necessary corporate action on the part of the Company and other than the Written Consent, no additional corporate
actions on the part of the Company are necessary to authorize the execution, delivery and performance of this Agreement by the
Company or the consummation of the Transactions. The only vote of holders of any class of capital stock of the Company necessary
to approve this Agreement and to consummate the Merger and the Transactions (under applicable Law, the Company’s Organizational
Documents or otherwise) is the Written Consent. This Agreement has been duly executed and delivered by the Company and constitutes
a legal, valid and binding agreement of the Company 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 (the “Bankruptcy and Equity Exception”).
(b) The
Company Board has unanimously (i) determined that the Merger is fair to, and in the best interests of, the Company and its stockholders
(other than the Parent, Merger Sub and any of Parent’s other direct or indirect Subsidiaries), approved and declared advisable
the execution, delivery and performance by the Company of this Agreement, the Merger and the other Transactions and resolved to
recommend approval of this Agreement and the consummation of the Transactions to the holders of shares of Company Common Stock
(the “Company Recommendation”), which Company Recommendation has not been withdrawn, rescinded or modified
in any way as of July 20, 2020, (ii) directed that approval of this Agreement be submitted to the holders of shares of Company
Common Stock for their approval and (iii) received the opinion of its financial advisor, Nomura Securities International, Inc.
(the “Company Financial Advisor”), which may be oral provided that the Company Financial Advisor has
committed to deliver its written opinion promptly following the execution of this Agreement, to the effect that as of the date
hereof, and based upon and subject to the various assumptions, qualifications, limitations and other matters set forth therein,
the Merger Consideration to be received pursuant to, and in accordance with, the terms of this Agreement by the holders of shares
of Company Common Stock (other than Parent or any Affiliates of Parent), is fair, from a financial point of view to such holders
(the “Opinion”), and the Company has been authorized by the Company Financial Advisor to permit the inclusion
of the Opinion in the Consent Solicitation Statement.
(c) Except
for (a) the filing with the SEC of a consent solicitation statement pursuant to Section 14(a) of the Exchange Act (the “Consent
Solicitation Statement”) soliciting the approval of this Agreement by the stockholders of the Company other than
the Principal Stockholder, (b) the filing of the Certificate of Merger with the Secretary of State of the State of California pursuant
to the CCC and such filings with governmental Entities to satisfy the applicable Laws of states in which the Company or its subsidiaries
are qualified to do business, (c) any notices or filings under the HSR Act, (d) filings required by the applicable requirements
of the Securities Act or the Exchange Act, and (e) the consents or approvals listed in Section 5.4(a) of the Company Disclosure
Letter, no consents, authorizations, orders or approvals of or filings or registrations with or notifications to any Governmental
Entity are necessary in connection with (i) the execution, performance and delivery by the Company of this Agreement and (ii) the
consummation by the Company of the Transactions, except as would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(d) The
delivery of the Written Consent will constitute the requisite stockholder action to approve the Merger under applicable Laws, including
Section 152 of the CCC, and the Organizational Documents of the Company and is the only approval of the stockholders of the Company
necessary to approve the Merger and the consummation of the Transactions.
(e) The
information relating to the Company, the Company’s Subsidiaries and its or their respective officers and directors that is
or will be provided by the Company or its Representatives for inclusion in the Consent Solicitation Statement, and in any other
document filed with any other Governmental Entity in connection with the Transactions, will not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The Consent Solicitation Statement (except for such portions thereof that relate only
to Parent or Merger Sub) will comply in all material respects with the provisions of the Exchange Act and the rules and regulations
thereunder.
5.4 Governmental
Filings; No Violations; Certain Contracts, Etc.
(a) Other
than the filings, notices, reports, consents, registrations, approvals, permits, expirations of waiting periods or authorizations
(i) under Antitrust Laws, (ii) pursuant to or under the CCC, the Exchange Act and the Securities Act, including the filing of the
Consent Solicitation Statement with the SEC, (iii) required to be made with Nasdaq, (iv) with respect to state securities, takeover
and “blue sky” Laws and (v) the other filings required by Governmental Entities set forth on Section 5.4(a) of
the Company Disclosure Letter, no material actions, filings, notices, reports, consents, registrations, approvals, permits,
declarations or authorizations are required to be made by the Company or any of its Subsidiaries with, nor are any required to
be made or obtained by the Company or any of its Subsidiaries with or from any Governmental Entity, in connection with the execution,
delivery and performance of this Agreement by the Company and the consummation of the Transactions, except those that the failure
to make or obtain would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair
the consummation of the Transactions or reasonably be expected to result in a Material Adverse Effect.
(b) The
execution, delivery and performance of this Agreement by the Company do not, and the consummation of the Transactions will not,
constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Company or any of
its Subsidiaries, (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination)
of or default under, the creation or acceleration of any obligations under or the creation of an Encumbrance on any of the assets
of the Company or any of its Subsidiaries pursuant to, any Material Contract or Lease or, assuming (solely with respect to performance
of this Agreement and consummation of the Transactions) compliance with the matters referred to in Section 5.4(a),
under any Law to which the Company or any of its Subsidiaries is subject or (iii) any change in the rights or obligations of any
party under any Material Contract or Lease or require any consent or approval thereunder, except in the case of (ii) or (iii) above,
or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 Company
Reports; Financial Statements; Internal Controls.
(a) 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 March 31, 2018 (the
“Applicable Date”) (the forms, statements, reports and documents filed or furnished to the SEC and those
filed or furnished to the SEC subsequent to July 20, 2020, including any amendments thereto, the “Company Reports”).
Each of the Company Reports, at the time of its filing or being furnished (or, if amended, as of the date of such amendment), complied,
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. As of their respective dates (or, if amended, as of the date of such amendment), the
Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to July 20, 2020 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. Each required form, report and
document containing financial statements that has been filed with or submitted to the SEC by the Company since the Applicable Date
was accompanied by the certifications required to be filed or submitted by the Company’s principal executive officer and
principal financial officer, as required, pursuant to the Sarbanes-Oxley Act and, at the time of filing or submission of each such
certification (or, if amended, as of the date of such amendment), such certification was true and accurate and complied with the
Sarbanes-Oxley Act. None of the Company, any current executive officer of the Company or, to the Knowledge of the Company, any
former executive officer of the Company has received written notice from any Governmental Entity challenging or questioning the
accuracy, completeness, form or manner of filing of such certifications made with respect to the Company Reports filed prior to
July 20, 2020. No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange
Act.
(b) The
Company has made available to Parent true, correct and complete copies of all comment letters received by the Company from the
SEC since the Applicable Date relating to the Company Reports, together with all written responses of the Company thereto. There
are no outstanding or unresolved comments in any comment letters received by the Company from the SEC relating to the Company Reports
and the Company has not received any notice from the SEC that any of the Company Reports is the subject of any ongoing review,
outstanding comment or outstanding investigation by the SEC.
(c) The
Company has established and maintains, and has at all times since March 31, 2018 maintained, disclosure controls and procedures
required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure
that all (i) information required to be disclosed by the Company is recorded, processed, summarized and reported on a timely basis
to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents
and (ii) such material information is accumulated and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley
Act. The Company has established and maintains, and has at all times since January 1, 2018 maintained, internal control over financial
reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act) that is designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP. The Company’s management has completed an assessment of the effectiveness of the Company’s internal control
over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended
March 31, 2019, and such assessment concluded that such system was effective. Since January 1, 2018, the principal executive officer
and principal financial officer of the Company have made all certifications required by the Sarbanes-Oxley Act (including Section
302 and 906 thereof). Neither the Company nor its principal executive officer or principal financial officer has received notice
from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
The Company’s system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the
Exchange Act) is sufficient to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed in accordance with the authorization
of Company management, and (iii) that any unauthorized use, acquisition or disposition of the Company’s assets that would
materially affect the Company’s financial statements would be detected or prevented in a timely manner.
(d) Each
of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes
and schedules) fairly presents, or, in the case of Company Reports filed after July 20, 2020, will fairly present the consolidated
financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of operations,
comprehensive income, equity and cash flows included in or incorporated by reference into the Company Reports (including any related
notes and schedules) fairly presents, or in the case of Company Reports filed after July 20, 2020, will fairly present the results
of operations, retained earnings (loss) and changes in financial position, as applicable, of such companies for the periods set
forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that will not individually
or in the aggregate be material in amount or effect to the Company and its consolidated Subsidiaries), in each case in accordance
with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto. Since March
31, 2017, none of the Company, its Subsidiaries or, to the Knowledge of the Company, the Company’s independent registered
accountant has identified or been made aware of (i) any significant deficiency or material weakness in the design or operation
of internal control over financial reporting utilized by the Company, (ii) any fraud, whether or not material, that involves the
management or other employees of the Company or any of its Subsidiaries who have a significant role in the Company’s preparation
of financial statements or internal control over financial reporting, or (iii) any claim or allegation regarding any of the foregoing.
(e) The
Company, based on its most recent evaluation of internal control over financial reporting, has not identified or been advised in
writing by the Company’s independent registered public accounting firm of (i) any significant deficiencies or material weaknesses
in the design or operation of its internal controls over financial presorting that are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report financial information or (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the preparation of financial statements or the Company’s internal
control over financial reporting. Since the Applicable Date, no material complaints, allegations, assertions or claims from any
source regarding accounting, internal accounting controls or auditing matters, or regarding questionable accounting or auditing
matters, have been received by the Company or, to the Knowledge of the Company, the Company’s independent registered public
accounting firm that remain unresolved.
(f) Section
5.5(f) of the Company Disclosure Letter contains a true, correct and complete list of all Indebtedness of the Company as
of July 20, 2020, other than Indebtedness included with specificity in the Company Reports.
5.6 Absence
of Certain Changes. Since March 31, 2020 through July 20, 2020, the Company and its Subsidiaries have conducted their respective
businesses only in, and have not engaged in any material transaction other than in, the Ordinary Course, and there has not been
any Effect that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect. Except
as expressly contemplated by this Agreement, since March 31, 2020 through July 20, 2020, the Company has not taken any actions
which, had such actions been taken after July 20, 2020, would have required the prior written consent of Parent pursuant to Section
7.1(b).
5.7 Litigation
and Liabilities.
(a) There
are no, and for past three (3) years have been no, Proceedings pending or, to the Knowledge of the Company, threatened against
the Company or any of its Subsidiaries or any present or former officer, director or employee, in their capacities as such, of
the Company or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No examination of the Company by any Governmental Entity has resulted in materially negative outstanding
findings, requests or orders that have not been addressed. No notices or written correspondence from the Reserve Bank of India
has been received by (i) the Principal Stockholder, in relation to its shareholding in the Company or any alleged non-compliance
with applicable Laws relating to Indian foreign exchange control, (ii) Majesco Software and Solutions India Private Limited, in
relation to its foreign shareholding and capitalization or any alleged non-compliance with applicable Laws relating to Indian foreign
exchange control.
(b) Except
for obligations and liabilities (i) reflected or reserved against in the Company’s consolidated balance sheets (or the notes
thereto) included in the Company Reports filed prior to July 20, 2020, (ii) incurred in the Ordinary Course since March 31, 2020,
or (iii) incurred in connection with this Agreement, there are no obligations or liabilities required to be reflected or reserved
against on a balance sheet (or the notes thereto) prepared in accordance with GAAP of the Company or any of its Subsidiaries, whether
or not accrued, contingent or otherwise, except as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party
to, any “off balance sheet arrangement” within the meaning of Item 303 of Regulation S-K promulgated under the Securities
Act.
(c) As
July 20, 2020, neither the Company nor any of its Subsidiaries is a party to or subject to the provisions of any Governmental Order
that restricts in any material respect the manner in which the Company and its Subsidiaries conduct their businesses, that otherwise
is material to the Company and its Subsidiaries, taken as a whole, or that would, individually or in the aggregate, reasonably
be expected to prevent or materially delay or impair the consummation of the Transactions.
5.8 Employee
Benefits.
(a) Section
5.8(a) of the Company Disclosure Letter sets forth a complete and correct list, by jurisdiction, of each material Company
Benefit Plan. With respect to each Company Benefit Plan, the Company has made available to Parent to the extent applicable, accurate
and complete copies of (i) the Company Benefit Plan document, including any amendments thereto, and all related trust documents,
insurance contracts or other funding vehicles and any IRS determination letter, (ii) the most recent summary plan description (and
any summaries of material modifications thereto), (iii) a written description of such Company Benefit Plan if such plan is not
set forth in a written document, (iv) the most recently prepared actuarial report and (v) all material or non-routine correspondence
to or from any Governmental Entity received since the Applicable Date with respect to any Company Benefit Plan.
(b) Each
Company Benefit Plan, has been established, maintained, funded, operated and administered in all material respects in compliance
with its terms and all applicable Laws, including ERISA and the Code. With respect to each Company Benefit Plan, all material contributions,
distributions, reimbursements, premiums or other payments that are due have been timely made in all respects in accordance with
the terms of the Company Benefit Plan and in compliance with the requirements of applicable Law, and all contributions, distributions,
reimbursements, premiums or other payments for any period ending on or before the Closing Date that are not yet due have been made
or properly accrued.
(c) (i)
Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be
qualified under Section 401(a) of the Code, has received a current favorable determination letter from the IRS or may rely upon
a current opinion or advisory letter from the IRS, and nothing has occurred that, to the Knowledge of the Company, could reasonably
be expected to adversely affect the qualification or tax exemption of any such Company Benefit Plan and (ii) with respect to any
Company Benefit Plan, (x) neither the Company nor any of its Subsidiaries or (y) to the Knowledge of the Company, any other Person,
has engaged in a transaction in connection with which the Company or any of its Subsidiaries reasonably could be subject to either
a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code
in an amount that could be material. There is no Proceeding (other than routine and undisputed claims for benefits) pending or,
to the Knowledge of the Company, threatened with respect to any Company Benefit Plan or against the assets of any Company Benefit
Plan.
(d) No
Company Benefit Plan is, and none of the Company, any of its Subsidiaries nor any Company ERISA Affiliate has sponsored, maintained,
established, participated in, contributed (or had any obligation of any sort) in the last six years to, or otherwise has any current
or contingent liability or obligation under or with respect to, (i) a “defined benefit plan” (as defined in Section
3(35) of ERISA, whether or not subject to ERISA) or other plan that is or was subject to Section 412 of the Code or Section 302
or Title IV of ERISA, (ii) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple
employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (iv) a “multiple
employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA). No Company Benefit Plan (including any
Non-U.S. Company Benefit Plan) provides, and neither the Company nor any of its Subsidiaries has promised or has any other current
or potential obligation to provide, post-termination or post-retirement health or other welfare benefits, other than under the
Company’s disability plans or other than as otherwise required by COBRA or any other applicable Law for which the covered
Person pays the full cost of coverage. Neither the Company nor any of its Subsidiaries has any current or contingent liability
or obligation to the Pension Benefit Guaranty Corporation or otherwise under Title IV of ERISA, including on account of at any
time being considered a single employer with any other Person under Section 414 of the Code or under any successor liability
theory.
(e) Neither
the Company nor any of its Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject
to, any material Tax, penalty or other liability (x) pursuant to Sections 4980B, 4980D, or 4980H, of the Code, or (y) as it relates
to employee healthcare coverage related information Tax Returns, pursuant to Sections 6721 or 6722 of the Code.
(f) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions, either alone or in combination with another
event, could (i) entitle any Company Employee (or other current or former individual service provider of the Company or any of
its Subsidiaries) to any payment, including severance pay or any increase in severance pay or result in any other compensation
or benefit (including the forgiveness of any indebtedness) becoming due to any Company Employee (or other current or former individual
service provider of the Company or any of its Subsidiaries); (ii) accelerate the time of payment, funding or vesting, or increase
the amount or value of any compensation or benefits, or other rights under any Company Benefit Plan or otherwise; (iii) directly
or indirectly cause the Company to transfer or set aside any assets to fund any benefits under any Company Benefit Plan; (iv) otherwise
give rise to any liability under any Company Benefit Plan; or (v) limit or restrict the right to merge, amend, terminate or transfer
the assets of any Company Benefit Plan on or following the Effective Time. No Indian resident employee eligible under any Non-U.S.
Company Benefit Plan is entitled to any options in relation to shares of Company Common Stock.
(g) Each
plan, program, agreement or other arrangement of the Company or any of its Subsidiaries that constitutes a “nonqualified
deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been documented, operated and maintained,
in form and operation, in all material respects in accordance with Section 409A of the Code and applicable guidance of the Department
of Treasury and IRS; such that no amount is or has been subject to interest, Tax or penalties in respect of such arrangement failing
to be in compliance with Section 409A of the Code;
(h) None
of the Company or any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any individual with
respect to any Tax, including under Sections 409A or 4999 of the Code.
(i) Neither
the execution and delivery of this Agreement and the other transaction documents nor the consummation of the Transactions (either
alone or in conjunction with any other event) could, directly or indirectly, result in the payment, separately or in the aggregate,
of any “excess parachute payment” within the meaning of Code Section 280G (or any corresponding provision of state,
local or non-U.S. Tax law).
(j) Without
limiting the generality of the other provisions of this Agreement: (i) all Non-U.S. Company Benefit Plans have been established,
maintained, funded, operated and administered in all material respects in compliance with their terms and with applicable Law;
(ii) all material employer and employee contributions to each Non-U.S. Company Benefit Plan required by Law or by the terms of
such Non-U.S. Company Benefit Plan have been timely made, or, if applicable, accrued in accordance with normal accounting practices;
(iii) each Non-U.S. Company Benefit Plan required to be registered or intended to meet certain regulatory or requirements for favorable
tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities
and requirements; (iv) no Non-U.S. Company Benefit Plan is a defined benefit plan (as defined in ERISA, whether or not subject
to ERISA), seniority premium, termination indemnity, provident fund, gratuity or similar plan or arrangement or has any unfunded
or underfunded liabilities; and (v) all Non-U.S. Company Benefit Plans that are required to be funded are fully funded, and adequate
reserves have been established with respect to any Non-U.S. Company Benefit Plan that is not required to be funded.
5.9 Labor
Matters.
(a) No
Company Employees are represented by a labor or trade union, works council, staff association, employee representative body, or
other labor organization. The Company and its Subsidiaries are not party to or otherwise bound by any collective bargaining agreement
or other Contract with a labor union, works council, employee representative body or other labor organization (each, a “Company
Labor Agreement”) nor is there any pending or, to the Knowledge of the Company, threatened labor representation request
or petition with respect to any employee of the Company or any of its Subsidiaries. To the Knowledge of the Company, there is,
and since the Applicable Date, has been, no union organizing activities, election or other activities involving employees of the
Company or its Subsidiaries. Neither the execution and delivery of this Agreement nor the Transactions will require consultation
with, the consent of, or advance notification to, any works councils, labor unions or similar labor organizations with respect
to any Company Employees, other than any such consents the failure of which to obtain, or advance notifications the failure of
which to provide, as would not reasonably be expected to be material to the Company or its Subsidiaries. There are no Company Labor
Agreement applicable to employees of the Company or its Subsidiaries located outside the United States and to which the Company
or any of its Subsidiaries is a party to or otherwise is bound by.
(b) There
is, and since the Applicable Date has been, no strike, picketing, lockout, slowdown, work stoppage, material unfair labor practice
or other material labor dispute, arbitration or grievance pending or, to the Knowledge of the Company, threatened against the Company
or its Subsidiaries. Neither the Company nor any of its Subsidiaries currently contemplates a lockout of any employees.
(c) Each
of the Company and its Subsidiaries are, and since the Applicable Date has been, in compliance with all applicable Laws respecting
labor, employment and employment practices, including those respecting its own internal policies, terms and conditions of employment,
contractual obligations, fair employment practices, equal employment opportunity, nondiscrimination, consultation with employees,
wages and hours (including payment of all compensation to and classification of current and former employees and independent contractors),
collective bargaining, worker and employee classification, employee termination (actual or constructive), plant closing, changes
in operations, payment and withholding of payroll, social security and employment Taxes, immigration, and occupational safety and
health, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in material liability
to the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has incurred any liability or obligation
under the Worker Adjustment and Retraining Notification Act or any similar foreign, state or local Law (the “WARN Act”)
that remains unsatisfied, except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. Except as would not result in material liability for the Company and its Subsidiaries: (i) the Company and its
Subsidiaries have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments,
fees, and other compensation that has come due and payable to their current or former employees and independent contractors under
applicable Laws, Contract or company policy; and (ii) each individual who is providing or within the past three (3) years has provided
services to the Company and its Subsidiaries and is or was classified and treated as an independent contractor, consultant, leased
employee, or other non-employee service provider is and has been properly classified and treated as such for all applicable purposes.
(d) No
Company Employee is entitled to payment, compensation, benefits or acceleration of payment or vesting of any such compensation
or benefits, in connection with the Transactions, and no arrangement with respect to the foregoing (whether oral or written) is
in place.
(e) The
Company and its Subsidiaries have thoroughly and impartially investigated all discrimination and sexual harassment allegations
of, by, or against, any current or former employee. With respect to each such allegation with potential merit, the Company or the
applicable Subsidiary has taken prompt corrective action that is reasonably calculated to prevent further discrimination and harassment,
and the Company and its Subsidiaries do not reasonably expect to incur material liability with respect to any such allegations.
(f) The
Company has provided a true and accurate list of all Company Employees as of July 8, 2020, including the entity that employs or
engages them, their remuneration (including without limitation any severance payment, commission, bonus or other incentive arrangements),
immigration status, including the type and expiration date of any relevant work authorization, the date on which their continuous
service began, the job title for each, and for employees in the United States their exempt or non-exempt classification.
(g) No
employee layoff, facility closure or shutdown (whether voluntary or by order), reduction-in-force, furlough, temporary layoff,
material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees
of the Company or its Subsidiaries has occurred since March 1, 2020 or is currently contemplated, planned or announced, including
as a result of COVID-19 or any Law or in connection with or in response to COVID-19. The Company and its Subsidiaries have taken
reasonable steps to protect employees and independent contractors in the workplace with respect to COVID-19 and have not otherwise
experienced any material employment-related liability with respect to COVID-19.
5.10 Compliance
with Laws; Licenses.
(a) The
Company and each of its Subsidiaries are, and since the Applicable Date, have been, in material compliance with all Laws applicable
to the Company or any of its Subsidiaries, including Payment Services Directive (PSD2 – EU Directive 2015/2366) and applicable
unclaimed property Laws, except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(b) Except
with respect to regulatory matters covered by Section 7.6, no material investigation or review by any Governmental
Entity with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor has
any Governmental Entity indicated an intention to conduct the same, except as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(c) The
Company and each of its Subsidiaries has obtained and is in compliance with in all material respects all Licenses necessary to
conduct their respective businesses as presently conducted, except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. No Licenses shall cease to be effective as a result of the consummation of the
Transactions and no suspension or cancellation of any of the Licenses is pending or, to the Knowledge of the Company, threatened,
except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(d) The
Company, its Subsidiaries and their respective officers, directors or employees, and, to the Knowledge of the Company, all of their
respective other Representatives are in compliance in all respects with and in the last five (5) years have complied in all respects
with (i) the FCPA, (ii) the UK Bribery Act 2010 (the “UKBA”), and (iii) the provisions of all anti-bribery,
anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated
and in which any agent thereof is conducting or has conducted business involving the Company or any of its Subsidiaries. Without
limiting the foregoing in the last five (5) years none of the Company, any of its Subsidiaries or their respective officers, directors
or employees, nor, to the Knowledge of the Company, any of their respective other Representatives (A) have paid, received, offered
or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value, (B) have
established or maintained, or are maintaining, any unlawful fund of corporate monies or properties, (C) have used or are using
any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel, or other expenses, (D) have, directly
or indirectly, made, offered, authorized, facilitated, or promised any payment, contribution, gift, entertainment, bribe, rebate,
kickback, financial or other advantage, or anything else of value, regardless of form or amount, to any national, provincial, municipal
or other Government Official, any political party or candidate for political office, or any other Person in each case (A) –
(D), connection with or relating to the business of the Company or its Subsidiaries in violation in any respect of the FCPA, the
UKBA, and any Laws described in clause (iii) (collectively, “Anti-Corruption Laws”).
(e) The
Company, its Subsidiaries, and their respective officers, directors, employees and, to the Knowledge of the Company, any of their
respective other Representatives has at all times during the past five (5) years is currently, and will remain in compliance in
all material respects with Sanctions and Export Control Laws and U.S. antiboycott requirements (collectively, “Trade
Controls”). None of the Company, any of its Subsidiaries or their respective officers, directors or employees or,
to the Knowledge of the Company, any of their respective other Representatives are currently or have in the last five years been:
(i) a Sanctioned Person; (ii) organized, resident, or located in a Sanctioned Country, (iii) operating in, conducting business
with, or otherwise engaging in dealings with or for the benefit of any Sanctioned Person or in any Sanctioned Country; or (iii)
otherwise in violation of any Trade Controls.
(f) The
operations of the Company and its Subsidiaries are and, since the Applicable Date, have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations, or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money
Laundering Laws”).
(g) No
investigation, inquiry or enforcement proceedings by or before any Governmental Entity involving the Company or any of its Subsidiaries
or any of their respective officers, directors or employees, nor to the Knowledge of the Company, any of their respective other
Representatives with respect to the Money Laundering Laws, Trade Controls or Anti-Corruption Laws of which the Company or its Subsidiaries
has been notified, is pending or, to the Knowledge of the Company, has been threatened in writing, and there are no circumstances
likely to give rise to any such investigation, inquiry or proceedings.
5.11 Takeover
Statutes. No “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover
statute or regulation (each, a “Takeover Statute”) or any anti-takeover provision in the Company’s
Organizational Documents is or will be applicable to the Company, the shares of Company Common Stock, or the Transactions.
5.12 Environmental
Matters.
(a) Each
of the Company and its Subsidiaries is in compliance, and has complied at all times since the Applicable Date, in all material
respects with all applicable Environmental Laws.
(b) Each
of the Company and its Subsidiaries, and all Leased Real Property used in the conduct of the businesses of the Company and its
Subsidiaries: (A) possesses and since the Applicable Date has maintained, and is and since the Applicable Date has been in compliance
in all material respects with all Licenses required by applicable Environmental Laws; (B) is not the subject of any pending or,
to the Knowledge of the Company, threatened Proceeding or written notice from any Person or Governmental Entity alleging the material
violation of, or regarding any material liability under, any applicable Environmental Law; (C) is not currently subject to any
Governmental Order (including any court order, administrative order or decree) arising under any Environmental Law; and (D) has
not (nor has any other Person to the extent giving rise to liability for the Company or its Subsidiaries) treated, stored, disposed
of, arranged for or permitted the disposal of, transported, handled or released, exposed any Person to, and no current or former
Leased Real Property has had any emissions or discharges of or contamination by, Hazardous Substances, except as permitted under
applicable Environmental Laws and as would not give rise to any material liabilities under Environmental Laws.
(c) Each
Product complies and has complied in all material respects with, and has not resulted in any material liabilities of the Company
or its Subsidiaries under, any and all applicable Laws (including Environmental Laws), including those pertaining to the presence
(or absence) of Hazardous Substances or specified substances in electrical or electronic or other products; registration or notification
of chemical substances in products; labeling of product or product packaging as respects product content or as respects health,
safety or environmental effects or attributes or as respects required end-of-life handling or disposition of products or product
packaging; and coverage and payment of fees under an approved scheme for end-of-life, return and recycling of products or of product
packaging.
(d) The
Company has made available to Parent all material environmental audits, reports and other material environmental documents received
by the Company or its Subsidiaries since the Applicable Date materially bearing on environmental liabilities of the Company or
its Subsidiaries or current Products, properties, facilities or operations, in each case which are in its possession or under its
reasonable control.
5.13 Tax
Matters.
(a) All
income and other material Tax Returns required to be filed with any Taxing Authority by, or on behalf of, the Company or any of
its Subsidiaries have been filed when due in accordance with applicable Law (taking into account any applicable extensions of time
within which to file), and all such Tax Returns are true and complete in all material respects.
(b) Any
unpaid Taxes of the Company and each of its Subsidiaries (i) did not, as of the most recent fiscal month end, exceed the reserve
for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income)
set forth on the face of the Company Reports and (ii) do not exceed that reserve as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns.
(c) The
Company and each of its Subsidiaries has timely paid (or has had timely paid on its behalf) or has timely withheld and remitted
to the appropriate Taxing Authority all material Taxes due and payable (whether or not shown on any Tax Return). There are no Encumbrances
for Taxes (other than Encumbrances for Taxes not yet due and payable) upon any of the assets of the Company or any of its Subsidiaries.
(d) There
is no claim, assessment, audit, or similar Proceeding now pending or threatened in writing against or with respect to the Company
or any of its Subsidiaries in respect of any Tax. Neither the Company nor any of its Subsidiaries has executed, requested or filed
with any Governmental Entity any agreement extending the period for assessment or collection of any Taxes or for the filing of
any Tax Return which has not since expired.
(e) No
claim has ever been made by a Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries do not file Tax Returns
that the Company or its Subsidiaries is or may be subject to Taxes assessed by such jurisdiction.
(f) Neither
the Company nor any of its Subsidiaries has ever been a distributing corporation or a controlled corporation in a transaction intended
to qualify under Section 355 or Section 361 of the Code.
(g) Neither
the Company nor any of its Subsidiaries has been a member of an affiliated, consolidated, combined or unitary group other than
a group the common parent of which is or was the Company or any of its Subsidiaries.
(h) None
of the Company or any of its Subsidiaries has been a party to a “reportable transaction” within the meaning of Section
6707A(c)(1) of the Code and Treasury Regulation 1.6011-4(b)(2) (or any similar or analogous provision of state, local or non-U.S.
Law).
(i) None
of the Company or any of its Subsidiaries (i) is a party to or bound by (x) any Tax allocation or sharing agreement, or any similar
agreement, or (y) any closing agreement (within the meaning of Section 7121(a) of the Code (or any similar or analogous provision
of state, local or non-U.S. Law)) or other ruling or written agreement with a Taxing Authority, or (ii) has any liability
for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6
(or any similar or analogous provision of state, local or non-U.S. Law), as a transferee or successor, by Contract, or otherwise.
(j) The
Company and each of its Subsidiaries has (A) properly collected and remitted sales, use, value added and similar Taxes with
respect to sales or leases made or services provided to its clients and (B) for all sales or leases made or services provided
that are exempt from such Taxes and that were made without charging or remitting sales or similar Taxes, properly received and
retained any appropriate Tax exemption certificates and other documentation qualifying such sale, lease or service as exempt.
(k) None
of the Company or any of its Subsidiaries will be required to include any amount in income, or exclude any item of deduction, in
a taxable period (or portion thereof) beginning after the Closing Date as a result of (i) a change in method of accounting occurring
on or prior to the Closing Date, (ii) the use of an improper method of accounting for a taxable period ending on or prior to the
Closing Date, (iii) any intercompany transaction or excess loss account described in the Treasury Regulations under Section 1502
of the Code (or any similar or analogous provision of state, local, or non-U.S. Law), (iv) an installment sale or open transaction
arising on or before the Closing Date, (v) a prepaid amount received or paid, or deferred revenue or gains arising or accrued,
on or before the Closing Date, or (vi) an election under Section 108(i) of the Code (or any similar or analogous provision of state,
local, or non-U.S. Law). None of the Company or any of its Subsidiaries has been or will be subject to any Tax after the Closing
Date by reason of Section 965 of the Code (including by reason of an election under Section 965(h) of the Code and the Treasury
Regulations (or other guidance) issued thereunder).
(l) None
of the Company or any of its Subsidiaries is a resident for Tax purposes or has a branch, permanent establishment, agency or other
taxable presence in any country other than its country of organization.
5.14 Real
Property.
(a) The
Company has never owned any interest in any real property.
(b) Section
5.14(b) of the Company Disclosure Letter sets forth the address of each Leased Real Property, and a true and complete list
of all Leases (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for each such
Leased Real Property. Except as set forth in Section 5.14(b) of the Company Disclosure Letter, with respect to the
Leased Real Property: (i) the Lease for the applicable property is valid, legally binding, enforceable and in full force and effect,
(ii) the Company’s or Subsidiary’s possession and quiet enjoyment of the Leased Real Property has not been materially
disturbed, and to the Knowledge of the Company, there are no disputes with respect to such Lease, (iii) none of the Company or
any of its Subsidiaries is in breach of or default under such Lease, and no event has occurred, which, with notice, lapse of time
or both, would constitute a breach or default by any of the Company or its Subsidiaries or permit termination, modification or
acceleration by any third party thereunder, (iv) the other party to such Lease is not an Affiliate of, and otherwise does not have
any economic interest in, the Company or any its Subsidiaries, (v) none of the Company or any of its Subsidiaries have subleased,
licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof, and (vi)
no prior approvals of any third parties are required for the continued usage of the Leased Real Property by the Company and the
Subsidiaries after the Effective Time.
(c) The
Leased Real Property comprises all of the real property used or intended to be used in the Company’s business.
5.15 Intellectual
Property; IT Assets; Privacy.
(a) Section
5.15(a) of the Company Disclosure Letter sets forth, as of July 20, 2020, a list of all U.S. and foreign (i) issued patents
and patent applications, (ii) trademark registrations and applications, (iii) copyright registrations and applications, and (iv)
registered domain names, in each case, which are owned or purported to be owned by or registered in the name of the Company or
any of its Subsidiaries. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, all Registered Intellectual Property Rights owned by the Company or any of its Subsidiaries that are material to their
respective businesses are valid, subsisting, and, to the Knowledge of the Company, enforceable, other than pending applications
therefor, registered.
(b) The
Company or its Subsidiaries (i) has a valid and enforceable right to use all Intellectual Property Rights used in or necessary
for the operation of their businesses and (ii) exclusively own and possess, all right, title and interest in and to all Intellectual
Property Rights owned by the Company or its Subsidiaries that are used in, held for use in or necessary for the operation of their
business (clause (i) and (ii), the “Company Intellectual Property”), in each case, free and clear of
all liens. The Company Intellectual Property shall be available for use by the Company and its Subsidiaries immediately after the
Closing Date on identical terms and conditions to those under which the Company owned or used the Company Intellectual Property
immediately prior to the Closing Date. None of the Company Intellectual Property is owned by Parent or any of its Affiliates (other
than the Company and its Subsidiaries).
(c) The
Company and its Subsidiaries have taken commercially reasonable actions to maintain and protect all of the Company Intellectual
Property, including the secrecy, confidentiality and value of material trade secrets and other confidential information of the
Company and its Subsidiaries for which confidentiality is appropriate, and neither the Company nor any of its Subsidiaries has
disclosed any confidential Company Intellectual Property to any third party other than as deemed appropriate in the Ordinary Course
or pursuant to a written confidentiality agreement pursuant to which such third party agrees not to disclose and to protect such
confidential information.
(d) During
the past three (3) years, there has been no Proceeding pending or threatened in writing against the Company or any of its Subsidiaries,
and neither the Company nor any of its Subsidiaries has received any written notice, in each case, which has not since been resolved
without liability to the Company or any of its Subsidiaries, alleging that the Company or any of its Subsidiaries infringes, misappropriates
or otherwise violates the Intellectual Property Rights of any Person. To the Knowledge of the Company, the conduct of the respective
businesses of the Company and its Subsidiaries does not infringe, misappropriate or otherwise violate, and, in the past three (3)
years, has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person.
(e) To
the Knowledge of the Company, in the past three (3) years, no Person has infringed, misappropriated or otherwise violated any Intellectual
Property Rights owned by the Company or any of its Subsidiaries in a manner that is or would be materially adverse to the operations
of the business or operations of the Company or any of its Subsidiaries, taken as a whole.
(f) To
the Knowledge of the Company, none of the Company or any of its Subsidiaries use or have used any Open Source Software (including
any modification or derivative thereof) in a manner that would (i) require the disclosure or distribution of any proprietary material
source code of the Company or any of its Subsidiaries, or (ii) grant or purport to grant to any Person any rights to or immunities
under any of the material Intellectual Property Rights owned by the Company or any of its Subsidiaries.
(g) To
the Knowledge of the Company, in the past three (3) years, the Company has not suffered a security breach of, unauthorized access
to, unauthorized use of, destruction or damage to, or malicious code in, any of the IT Assets owned or used by the Company or any
of its Subsidiaries or of any Personal Information stored therein or otherwise processed by the Company.
(h) The
Company and its Subsidiaries own, lease, license, or otherwise have the legal right to use all IT Assets used by the Company and
its Subsidiaries, and such IT Assets are sufficient for the immediate and anticipated future needs of the Company’s and its
Subsidiaries’ business as it is currently conducted.
(i) The
Company and each of its Subsidiaries (i) have established and implemented written policies regarding privacy, cyber security and
data security that are commercially reasonable, and consistent in all material respects with all applicable requirements of Data
Protection Legislation and with reasonable practices in the industry, and (ii) have been in compliance in all material respects
with (A) all applicable requirements of Data Protection Legislation, (B) all privacy and security standards applicable to the industry
in which the Company operates or to its products and services (including the Payment Card Industry Data Security Standard (PCI
DSS) and to which the Company agrees to comply or has publicly attested to or affirmed its compliance), (C) the Company’s
and its Subsidiaries’ own internal and external-facing privacy policies, and (D) all of the Company’s and its Subsidiaries’
obligations relating to the collection, protection, storage, use, processing, transfer, or disposition of data under all Contracts
to which the Company or any of its Subsidiaries is party ((A)-(D), collectively, the “Data Requirements”),
and (iii) (1) neither the Company nor any of its Subsidiaries has received or been subject to any enforcement proceedings or formal
claim for compensation from any individual or Governmental Entity, alleging non-compliance with any Data Requirement, and (2) no
such investigations, inquiries or proceedings are pending as of July 20, 2020, or have been threatened in writing as of July 20,
2020 and, to the Knowledge of the Company, there are no circumstances likely to give rise to such investigations, inquiries or
proceedings.
5.16 Insurance.
Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) all fire and
casualty, general liability, business interruption, product liability, 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, (ii) all premiums due with respect to all Insurance Policies
have been paid and no notice of cancellation or suspension has been received and (iii) neither the Company nor any of its Subsidiaries
has taken any action or failed to take any action that (including with respect to the Transactions), with notice or lapse of time
or both, would constitute a breach or default, or permit a termination of any of the Insurance Policies.
5.17 Material
Contracts.
(a) Except
for this Agreement, as of July 20, 2020, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any
Contract that would be required to be filed by the Company as a “material contract” under Item 601(b)(10) of regulation
S-K under the Securities Act;
(ii) any
Contract (other than solely among direct or indirect wholly owned Subsidiaries of the Company) relating to Indebtedness in a principal
amount that exceeds of $750,000;
(iii) any
Company Labor Agreement;
(iv) any
Contract with a Governmental Entity that is a settlement, conciliation, or similar agreement or that imposes any material monetary
or other material obligation upon the Company or its Subsidiaries after July 20, 2020;
(v) any
Contract with a Material Customer or Material Supplier that (A) purports to limit in any material respect either the type of business
in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or
locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line
of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (C) grants “most
favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and
its Subsidiaries or (D) prohibits or limits the rights of the Company or any of its Subsidiaries to make, sell or distribute any
products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets;
(vi) any
Contract that materially affects the use or enforcement by the Company or its Subsidiaries of any material Intellectual Property
Rights owned by the Company or its Subsidiaries (including such settlement agreements, covenants not to assert, and consents to
use), excluding any Contracts that are non-exclusive to the Company and entered into in the Ordinary Course;
(vii) any
Contract with any Material Customer or Material Supplier;
(viii) any
Contract that obligates the Company or any of its Subsidiaries to make any future capital commitment or capital expenditures in
excess of $2,000,000;
(ix) any
Contract to which any of the Company’s or its Subsidiaries’ directors or officers are a party (other than Company Benefit
Plans);
(x) any
Contract that relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company
or any of its Subsidiaries in, any joint venture, limited liability company, partnership or other similar arrangement;
(xi) any
Contract entered into in the last three (3) years that relates to the acquisition or disposition of any business, assets or properties
(whether by merger, sale of stock, sale of assets or otherwise) (a) pursuant to which any earn-out or deferred or contingent payment
obligations remain outstanding, (b) relating to the disposition or acquisition of assets by the Company or any of its Subsidiaries
with a value greater than $5,000,000 other than the disposition of assets in the Ordinary Course, (c) pursuant to which the Company
or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise
other than any Subsidiary of the Company, or (d) pursuant to which a claim for indemnification may still be made against the Company
or any of its Subsidiaries;
(xii) any
Contract with a Governmental Entity under which the Company or any of its Subsidiaries received payments in excess of $2,000,000
during the 12-month period ending March 30, 2020, other than non-exclusive licenses to customers in the Ordinary Course;
(xiii) any
Contract outside the Ordinary Course that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries
of $2,000,000 or more per any twelve month period not otherwise covered by the other clauses of this Section 5.17(a);
(xiv) any
Contract under which it is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property Rights
(other than non-exclusive end user licenses of commercially-available Software used solely for the Company’s internal use)
that involves payments by the Company or any of its Subsidiaries of $250,000 or more per any twelve month period;
(xv) any
Contract under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property Rights (other
than Intellectual Property Rights licensed to customers on a non-exclusive basis in the Ordinary Course); and
(xvi) any
other Contract or group of related Contracts that, individually or in the aggregate, if terminated or subject to a default by any
party thereto, would have or would reasonably be expected to have a Material Adverse Effect (each Contract constituting any of
the foregoing types of Contract described in clauses (i)–(xv), and including all amendments, exhibits and schedules to each
such Contract from time to time, a “Material Contract”).
(b) A
copy of each Material Contract has been made available to Parent. Unless otherwise disclosed, each Material Contract is valid and
binding on the Company or its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto, and
is in full force and effect, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. There is no material default under any such Material Contracts by the Company or its Subsidiaries, or, to the Knowledge
of the Company, any other party thereto, and no material event has occurred that with the lapse of time or the giving of notice
or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other
party thereto, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Since January 1, 2017, the Company has not received any written notice that it or any of its Subsidiaries is in default
or breach of any “non-solicitation” or “no-hire” or similar provision that restricts the Company or any
of its Subsidiaries from soliciting, hiring, engaging or employing any Person’s current or former employees. To the Knowledge
of the Company, neither the Company nor any of its Subsidiaries has received any notice challenging the validity or enforceability
of any Material Contract.
5.18 Warranties/Product
Liability. Except as incurred in the Ordinary Course since March 31, 2020, (a) neither the Company nor any of its Subsidiaries
has received any notice of any material violation or Proceeding from, by or before any Governmental Entity relating to any product,
including the packaging and advertising related thereto, designed, formulated, manufactured, processed, sold or placed in the stream
of commerce, or any services provided, by the Company or any of its Subsidiaries (a “Product”), (b) there
has not been, nor is there under consideration by the Company, any Product recall or post-sale warning of a material nature concerning
any Product, (c) there are no material product liability claims pending or, to the Knowledge of the Company, threatened in writing
with respect to any Product, and no such claims have been settled or adjudicated, and (d) to the Knowledge of the Company, there
is no basis for any present or future action against the Company or any of its Subsidiaries giving rise to any material liability,
arising out of product liability obligations, or any injury to any Person or property, in each case, as a result of the ownership,
possession or use of a Product, except as would not, individually or in the aggregate, reasonably be expected to result a Material
Adverse Effect.
5.19 Brokers
and Finders. None of the Company or any of its Subsidiaries nor any of their respective officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage fees, commissions or finders fees in connection with
the Transactions, except that the Company has retained and agreed to pay such fees to the Company Financial Advisor. The Company
has made available to Parent a complete and correct copy of all Contracts with the Company Financial Advisor to which the Company
or any of its Subsidiaries is bound.
5.20 Customers
and Suppliers.
(a) Section
5.20(a) of the Company Disclosure Letter sets forth (i) a list showing the twenty (20) largest customers by purchases made
by such customer during the twelve (12) months ended March 31, 2020 (collectively, the “Material Customers”),
and (ii) a list showing the twenty (20) largest suppliers by purchases made by the Company or any of its Subsidiaries during the
twelve (12) months ended March 31, 2020 (collectively, the “Material Suppliers”).
(b) At
no time since March 31, 2018 has the Company or any of its Subsidiaries (i) been in any material dispute with any of its Material
Customers or Material Suppliers, or (ii) have not received any written, or to the Knowledge of the Company, oral notice from any
Material Customer or Material Supplier to the effect that such Material Customer or Material Supplier intends to suspend, terminate
or materially reduce its relationship with the Company or any of its Subsidiaries.
5.21 Related
Person Transactions. Except as set forth in Section 5.21 of the Company Disclosure Letter and except for
indemnification, compensation or other employment arrangements entered into, modified or waived in the ordinary course of business,
there are no Contracts, transactions, arrangements or understandings between the Company and any of its Subsidiaries, on the one
hand, and any Affiliate (including any director or officer) thereof, but not including any wholly owned Subsidiary of the Company,
on the other hand, that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in
the Company’s Form 10-K or proxy statement pertaining to an annual meeting of stockholders.
5.22 Title
to Assets. Except as set forth in Section 5.22 of the Company Disclosure Letter, (a) as of the Closing Date,
all Company Intellectual Property is owned or validly licensed by the Company and (b) the Company or one of its Subsidiaries, as
applicable, owns or has sufficient rights (and as of the Closing will continue to own or have sufficient rights) pursuant to a
valid and enforceable right, license or leasehold interest in or to all of the property and assets, whether tangible or intangible,
(i) necessary for, used or held for use or useful in the conduct of the business of the Company and its Subsidiaries as presently
conducted and as conducted in the twenty-four (24) months prior to July 20, 2020, (ii) located on its premises to the extent related
to the business of the Company and its Subsidiaries, or (iii) reflected on the consolidated balance sheets included in or incorporated
by reference into the Company Reports or acquired since March 31, 2020, in each case, free and clear of all Encumbrances, except
for Permitted Encumbrances. Immediately after the Closing, such assets will be owned or available for use by Parent and its Subsidiaries
on terms and conditions identical to those under which the Company and its Subsidiaries owned or used such assets immediately prior
to the Closing, without payment of additional amounts or consideration, and no consent of, or intimation to, a Governmental Entity
or third party will be required prior to the execution of this Agreement or completion of the Transactions contemplated herein,
and for the avoidance of doubt, except as set forth in Section 5.22 of the Company Disclosure Letter, none of
Principal Stockholder or any other Person will continue to own any assets used or useful in, or otherwise related to, the business
of the Company and its Subsidiaries after the Closing.
5.23 No
Other Company Representations or Warranties. Notwithstanding anything to the contrary contained herein, the Company Disclosure
Letter, or any of the Schedules or Exhibits hereto or thereto, neither the Company nor any of its Affiliates, nor any of their
respective Representatives, makes or has made any representation or warranty, oral or written, express or implied, other than as
expressly made by them in this Article V, in any other agreement executed in connection with the Transactions or
as may be separately stated in writing in any certificate delivered hereunder.
5.24 Non-Reliance.
The Company hereby agrees (for itself and on behalf of its Affiliates and Representatives) that, except for the representations
and warranties of Parent and Merger Sub expressly set forth in this Agreement, any agreement expressly contemplated hereby, in
any closing certificate delivered pursuant to Article VIII and except in the case of fraud by the Parent, Merger Sub, the Guarantors
or any of their Affiliates, (a) none of the Parent, Merger Sub, the Guarantors nor any of their Subsidiaries (or any other Person)
makes, or has made, any other representation or warranty (whether express or implied) relating to the Parent, Merger Sub, the Guarantors,
any of their Subsidiaries or any of their respective businesses, operations, properties, assets, liabilities or otherwise in connection
with this Agreement and the Transactions, including as to the accuracy or completeness of any such information, and none of the
Company or any of its Affiliates or Representatives is relying on any representation or warranty made by Parent, Merger Sub, the
Guarantors, any of their Subsidiaries or their respective Representatives except for the representations and warranties of Parent
and Merger Sub expressly set forth in Article VI, any agreement expressly contemplated hereby, in any closing certificate delivered
pursuant to Article VIII, (b) no Person has been authorized by Parent, Merger Sub, the Guarantors or any of their Subsidiaries
to make any representation or warranty relating to Parent, Merger Sub, the Guarantors, any of their Subsidiaries or any of their
respective businesses, operations, properties, assets, liabilities or otherwise in connection with this Agreement or the Transactions,
and if made, such representation or warranty has not been, and may not be, relied upon by the Company or any of its Affiliates
or Representatives as having been authorized by Parent, Merger Sub, the Guarantors or any of their Subsidiaries (or any other Person),
and (c) any estimate, projection, prediction, data, financial information, memorandum, presentation or any other materials or information
provided or addressed to the Company or any of its Affiliates or Representatives, are not and shall not be deemed to be or include
representations or warranties unless and to the extent any such materials or information is expressly the subject of any express
representation or warranty of Parent or Merger Sub set forth in Article VI of this Agreement, the Company hereby acknowledges (for
itself and on behalf of its Affiliates and Representatives) that it has conducted, to its satisfaction, its own independent investigation
of the business, operations and financial condition of Parent and Merger Sub.
Article
VI
Representations and Warranties of Parent and Merger Sub
Except as set forth in
the corresponding sections or subsections of the disclosure letter delivered to the Company by Parent on July 20, 2020 (the “Parent
Disclosure Letter”), Parent and Merger Sub each hereby represent and warrant, as of July 20, 2020 and as of the Closing,
to the Company that:
6.1 Organization,
Good Standing and Qualification. Each of Parent and Merger Sub is a legal entity duly organized, validly existing and in good
standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority
to own, lease and operate its properties and assets and to carry on its business as presently conducted and is qualified to do
business and is in good standing as a foreign corporation in each jurisdiction where the ownership, leasing or operation of its
assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, qualified
or in such good standing, or to have such power or authority, would not, individually or in the aggregate, reasonably be expected
to prevent, materially delay or materially impair the ability of Parent and Merger Sub to consummate the Transactions. Parent has
made available to the Company copies of the Organizational Documents of Parent and Merger Sub, each as in effect on July 20, 2020.
6.2 Corporate
Authority; Approval. No vote of holders of capital stock of Parent is necessary to approve this Agreement and the Transactions.
Each of Parent and Merger Sub has all requisite corporate power and authority and has taken all corporate action necessary in order
to execute, deliver and perform its obligations under this Agreement and to consummate the Transactions, subject only to approval
of this Agreement by Parent as the sole stockholder of Merger Sub. This Agreement has been duly executed and delivered by each
of Parent and Merger Sub and, and, assuming the due authorization, execution and delivery by the Company, constitutes a legal,
valid and binding agreement of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its
terms, subject to the Bankruptcy and Equity Exception.
6.3 Governmental
Filings; No Violations.
(a) Other
than the filings, notices, reports, consents, registrations, approvals, permits, expirations of waiting periods or authorizations
(i) under Antitrust Laws, (ii) pursuant to or under the CCC, the Exchange Act and the Securities Act, including the filing of the
Consent Solicitation Statement with the SEC, (iii) required to be made with Nasdaq, and (iv) with respect to state securities,
takeover and “blue sky” Laws (collectively, the “Parent Approvals”), no filings, notices,
reports, consents, registrations, approvals, permits or authorizations are required to be made by Parent or Merger Sub with, nor
are any required to be made or obtained by Parent or Merger Sub with or from, any Governmental Entity in connection with the execution,
delivery and performance of this Agreement by Parent and Merger Sub and the consummation of the Transactions or in connection with
the continuing operation of the business of Parent and its Subsidiaries following the Effective Time, except as would not, individually
or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Parent to consummate
the Transactions.
(b) The
execution, delivery and performance of this Agreement by Parent and Merger Sub do not, and the consummation of the Transactions
will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of Parent, Merger
Sub or any of Parent’s other Subsidiaries, (ii) with or without notice, lapse of time or both, a breach or violation of,
a termination (or right of termination) of or default under, the creation or acceleration of any obligations under or the creation
of an Encumbrance on any of the assets of Parent or any of its Subsidiaries pursuant to, any Contracts binding upon Parent or any
of its Subsidiaries, or, assuming (solely with respect to performance of this Agreement and consummation of the Transactions) compliance
with the matters referred to in Section 6.3(a), under any Law to which Parent or any of its Subsidiaries is subject
or (iii) any change in the rights or obligations of any party under any Contract binding upon Parent or any of its Subsidiaries,
except, in the case of clause (ii) or (iii) above, as would not, individually or in the aggregate, reasonably be expected to prevent,
materially delay or materially impair the ability of Parent to consummate the Transactions.
6.4 Litigation
and Liabilities. As of July 20, 2020, (i) there are no Proceedings pending or, to the Knowledge of Parent, threatened in writing
against Parent or any of its Subsidiaries and (ii) neither Parent nor any of its Subsidiaries is a party to or subject to the provisions
of any judgment, order, writ, injunction, decree or award of any Governmental Entity, except as would not, individually or in the
aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Parent to consummate the Transactions.
6.5 Capitalization
and Activities of Merger Sub. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will
be, validly issued and outstanding and owned by Parent, and there are (a) no other shares of capital stock or voting securities
of Merger Sub, (b) no securities of Merger Sub convertible into or exchangeable for shares of capital stock or voting securities
of Merger Sub and (c) no options or other rights to acquire from Merger Sub, and no obligations of Merger Sub to issue, any capital
stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Merger Sub. Merger
Sub was formed solely for the purpose of effecting the Merger and has not conducted any business prior to July 20, 2020 and has
no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to
its formation and pursuant to this Agreement and the Transactions.
6.6 Brokers
and Finders. Neither Parent nor any of its Representatives has employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finders, fees in connection with the Transactions.
6.7 Financing.
(a) Parent
has delivered to the Company a true, complete and correct copy of an executed commitment letter dated as of July 20, 2020 ( as
amended by that certain Amendment to Equity Commitment Letter, dated as of the date hereof, the “Equity Commitment
Letter”) from the Equity Financing Source, pursuant to which the Equity Financing Source has committed to (i) provide,
subject only to the terms and conditions set forth therein, equity financing for the Transactions in the aggregate amount set forth
therein (the “Financing”) and (ii) guaranty, subject to the terms and conditions therein, certain of
Parent’s obligations hereunder. The Equity Commitment Letter provides that the Company is a third-party beneficiary thereof.
The Equity Commitment Letter, in the form so delivered to the Company, is in full force and effect and is a legal, valid and binding
obligation of Parent and the Equity Financing Source, fully and specifically enforceable against the parties thereto in accordance
with its terms, subject to the Bankruptcy and Equity Exception.
(b) [Reserved]
(c) As
of the date of this Agreement, the commitment set forth in the Equity Commitment Letter is in full force and effect, such commitment
has not been amended or modified and, to the Knowledge of Parent, no such amendment or modification is contemplated or pending
that would not be permitted by Section 7.13. Other than the Equity Commitment Letter, as of the date of this Agreement
there are no other agreements, side letters or arrangements to which Parent is a party relating to the funding or investing, as
applicable, of the Financing that could affect the availability of the Financing or any portion thereof on the Closing Date. As
of the date of this Agreement, Parent has paid in full any and all commitment or other fees required by the Equity Commitment Letter
that are due and payable as of the date of this Agreement. Neither Parent nor Merger Sub is in breach of any of the terms or conditions
set forth in the Equity Commitment Letter and, as of the date of this Agreement, to the Knowledge of Parent, no event has occurred
which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach, default or failure to
satisfy any condition precedent set forth therein. As of the date of this Agreement, the Equity Financing Source has not notified
Parent of its intention to terminate any commitment set forth in the Equity Commitment Letter or not to provide the Financing.
There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing (including
any “flex” provisions), other than as expressly set forth in the Equity Commitment Letter as disclosed to the Company
prior to the date hereof. As of the date of this Agreement, Parent has no reason to believe that it will be unable to satisfy on
a timely basis any conditions to the funding of the full amount of the Financing to be satisfied by it, or that the Financing will
not be available to Parent on the Closing Date. Parent acknowledges and agrees that its obligation to consummate the Transactions,
is not and will not be subject to the receipt by Parent or Merger Sub of any financing or the consummation of any other transaction.
(d) The
aggregate proceeds contemplated by the Equity Commitment Letter are sufficient (after deducting applicable fees, expenses, original
issue discount and similar premiums and charges) to enable Parent to (i) consummate the Transactions upon the terms contemplated
by this Agreement, (ii) pay all of the Merger Consideration payable in respect of all Eligible Shares in the Merger pursuant to
this Agreement, (iii) pay all other amounts payable pursuant to any provision of this Agreement, (iv) pay all Indebtedness, liabilities
and other obligations of the Company contemplated to be funded by Parent under by this Agreement, and (v) pay all related fees
and expenses associated with the Transactions or the Equity Commitment Letter incurred by Parent, Merger Sub, the Surviving Corporation
or any of their respective Affiliates and required to be paid at the Closing by such party.
(e) None
of the Guarantors, the Equity Financing Source, Parent, Merger Sub or any of their respective Affiliates has entered into any Contract
with any Person prohibiting or seeking to prohibit such Person from providing or seeking to provide debt financing to any Person
in connection with a transaction relating to the acquisition of the Company or any of its Subsidiaries.
6.8 Solvency.
None of Parent, Merger Sub, any Guarantor or the Equity Financing Source is entering into this Agreement with the intent to hinder,
delay or defraud either present or future creditors of the Company or any of its Subsidiaries. Assuming (a) the satisfaction of
the conditions set forth in Section 8.1 and Section 8.2 (in each case, other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing),
(b) that the representations and warranties set forth in Article V as written are true and correct as of July 20,
2020 and at and immediately after the Closing and (c) the estimates, projections or forecasts provided by or on behalf of the Company
or its Subsidiaries to Parent or Merger Sub prior to July 20, 2020 (as may have been updated in writing prior to July 20, 2020)
have been prepared in good faith on assumptions that were, and continue to be, reasonable, at and immediately after the Closing
(it being understood that Accounting Standards Update 2014-09 Revenue from Contracts with Customers (Topic 606) shall not affect
the reasonableness of the assumptions underlying such estimates, projections or forecasts), then, after giving effect to the consummation
of the Transactions (including the Financing being entered into in connection therewith), the Surviving Corporation and its Subsidiaries
would be Solvent.
6.9 Consent
Solicitation Statement. To the Knowledge of the Parent, none of the information supplied or to be supplied by Parent or Merger
Sub for inclusion or incorporation by reference in the Consent Solicitation Statement to be filed in connection with the Merger
and Transactions, or any amendment or supplement thereto, will at the time of the mailing of the Consent Solicitation Statement
contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
6.10 Limited
Guaranty. Concurrently with the execution of this Agreement, the Guarantors have duly executed and delivered the Limited Guaranty
to the Company. As of the date hereof, the Limited Guaranty is in full force and effect and is the legal, valid and binding obligation
of each Guarantor, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception, and has not been amended,
withdrawn or rescinded in any respect. As of the date hereof, no event has occurred which, with or without notice, lapse of time
or both, would constitute a default or breach on the part of any Guarantor under the Limited Guaranty.
6.11 Non-Reliance.
(a) Parent
and Merger Sub hereby acknowledge (each for itself and on behalf of its Affiliates and Representatives) that Parent, Merger Sub
and their respective Affiliates and Representatives (i) have received access to (A) such books and records, facilities, equipment,
contracts and other assets of the Company that Parent and Merger Sub and their respective Affiliates and Representatives, as of
July 20, 2020, have requested to review and (B) the electronic data room hosted by the Company in connection with the Transactions,
and (ii) have had an opportunity to meet with the management of the Company and to discuss the business and assets of the Company.
Parent and Merger Sub hereby acknowledge and agree (each for itself and on behalf of its respective Affiliates and Representatives)
that, except for the representations and warranties of the Company expressly set forth in this Agreement, any agreement expressly
contemplated hereby, in any closing certificate delivered pursuant to Article VIII and except in the case of fraud
by the Company or any of its Affiliates, (A) none of the Company nor any of its Subsidiaries (or any other Person) makes, or has
made, any other representation or warranty (whether express or implied) relating to the Company, its Subsidiaries or any of their
respective businesses, operations, properties, assets, liabilities or otherwise in connection with this Agreement and the Transactions,
including as to the accuracy or completeness of any such information, and none of Parent, Merger Sub or any of their respective
Affiliates or Representatives is relying on any representation or warranty made by the Company or its Representatives except for
the representations and warranties of the Company expressly set forth in Article V, any agreement expressly contemplated
hereby, in any closing certificate delivered pursuant to Article VIII (B) no Person has been authorized by the Company
or any of its Subsidiaries to make any representation or warranty relating to the Company, its Subsidiaries or any of their respective
businesses, operations, properties, assets, liabilities or otherwise in connection with this Agreement or the Transactions, and
if made, such representation or warranty has not been, and may not be, relied upon by parent, Merger Sub or any of their respective
Affiliates or Representatives as having been authorized by the Company or any of its Subsidiaries (or any other Person), and (C)
any estimate, projection, prediction, data, financial information, memorandum, presentation or any other materials or information
provided or addressed to Parent, Merger Sub or any of their respective Affiliates or Representatives, including any materials or
information made available in the electronic data room hosted by the Company in connection with the Transactions or in connection
with presentations by the Company’s management, and the estimates, projections, forecasts other forward-looking information,
and business plan and cost-related plan information referred to in paragraph (b) of this Section 6.11, are not and
shall not be deemed to be or include representations or warranties unless and to the extent any such materials or information is
expressly the subject of any express representation or warranty of the Company set forth in Article V of this Agreement,
Parent and Merger Sub hereby acknowledge (each for itself and on behalf of its Affiliates and Representatives) that it has conducted,
to its satisfaction, its own independent investigation of the business, operations and financial condition of the Company and its
Subsidiaries.
(b) Without
limiting the generality of the provisions of paragraph (a) of this Section 6.11 in connection with the due diligence
investigation of the Company and its Subsidiaries by Parent and Merger Sub, Parent and Merger Sub have received and may continue
to receive from the Company and its Subsidiaries certain estimates, projections, forecasts and other forward-looking information,
as well as certain business plan and cost-related plan information, regarding the Company, its Subsidiaries and their respective
businesses and operations. Parent and Merger Sub hereby acknowledge that there are uncertainties inherent in attempting to make
such estimates, projections, forecasts and other forward-looking statements, with which Parent and Merger Sub are familiar, that
Parent and Merger Sub are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates,
projections, forecasts and other forward-looking information, as well as such business plans and cost-related plans, so furnished
to them (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information,
business plans or cost-related plans), and that Parent and Merger Sub will not commence or threaten (and each of them agrees that
there shall be no basis for) any Proceeding against the Company or any of its Subsidiaries, or any of their respective stockholders,
directors, officers, employees, Affiliates, advisors, agents or representatives, or any other Person, with respect thereto.
Article
VII
Covenants
7.1 Interim
Operations.
(a) The
Company covenants and agrees as to itself and its Subsidiaries that, after July 20, 2020 and prior to the Effective Time (unless
Parent shall otherwise approve in writing in advance (which approval shall not be unreasonably withheld, delayed or conditioned)),
and except as otherwise expressly contemplated by this Agreement or as required by a Governmental Entity or applicable Law, its
business and the business of its Subsidiaries shall be conducted in all material respects in the Ordinary Course and, to the extent
consistent therewith, it and its Subsidiaries shall (i) preserve their business organizations in good standing pursuant to applicable
Law and (ii) use their respective commercially reasonable efforts to maintain existing relations and goodwill with Governmental
Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services
of its and its Subsidiaries’ respective present officers, employees and agents, except as otherwise expressly required by
this Agreement or as required by a Governmental Entity or applicable Law, provided that no action by the Company with respect to
matters permitted by any provision of clauses (i)-(xxii) of Section 7.1(b) below shall be deemed a breach of the
obligations under this sentence unless such action would constitute a breach of such other provision.
(b) Without
limiting the generality of, and in furtherance of, the foregoing, from July 20, 2020 until the Effective Time, except as otherwise
expressly (A) contemplated by this Agreement, (B) required by a Governmental Entity or applicable Law, (C) approved in writing
in advance (which approval shall not be unreasonably withheld, delayed or conditioned) by Parent or (D) set forth in Section
7.1(b) of the Company Disclosure Letter, the Company has not and shall not and has not and shall not permit its Subsidiaries
to:
(i) adopt
or propose any change in (x) the Company’s Organizational Documents or (y) any Subsidiary’s Organizational Documents;
(ii) merge
or consolidate itself or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned
Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements
imposing material changes or restrictions on its assets, operations or businesses;
(iii) (A)
acquire (1) (by merger, consolidation or acquisition of stock or assets) any other Person or (2) to the extent in excess of $5,000,000
in the aggregate, any material equity in any other Person therein or (B) enter into any joint venture, legal partnership or similar
arrangement (other than commercial agreements with partners in the Ordinary Course that do not involve the formation of an entity
with any third Person or require equity investing);
(iv) except
as otherwise permitted under clause (xvii) below and except for issuances under the ESPP authorized under Section 3.5(c),
issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer,
lease, license, guarantee or Encumbrance of, or otherwise enter into or amend any Contract or understanding with respect to the
voting of, any shares of its capital stock or securities convertible or exchangeable into or exercisable for any shares of such
capital stock, or any options, warrants or Company Equity Awards or other rights of any kind to acquire any shares of such capital
stock or such convertible or exchangeable securities (other than the issuance of shares (A) by its wholly owned Subsidiary to it
or another of its wholly owned Subsidiaries, (B) in respect of Company Warrants and Company Equity Awards, in each case outstanding
as of July 20, 2020 and issued in accordance with their terms in effect as of July 20, 2020 and, as applicable, the Stock Plan
or (C) under the ESPP);
(v) create
or incur any Encumbrance (other than a Permitted Encumbrance or as otherwise permitted by Section 7.1(b)(x));
(vi) make
any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and
any of its wholly owned Subsidiaries) in excess of $250,000 in the aggregate;
(vii) make
any loans or advances to, guarantees for the benefit of, or enter into any other material transaction with any Company Employee
or Affiliates other than advances for business, travel-related, relocation or other similar expenses in accordance with currently
existing Company policy;
(viii) 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 or other equity or voting interest (except for dividends paid by any direct or indirect wholly owned Subsidiary
to it or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its
capital stock;
(ix) reclassify,
split, combine, subdivide or redeem, purchase or otherwise acquire, or offer to redeem, repurchase 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, other than the withholding of shares of Company Common Stock to satisfy the exercise price or withholding Tax obligations
upon the exercise, vesting or settlement of outstanding Company Equity Awards in accordance with their terms and, as applicable,
the Stock Plan;
(x) unless
otherwise permitted by Section 7.1(b)(xvii), incur any Indebtedness (including the issuance of any debt securities,
warrants or other rights to acquire any debt security), except for (A) trade payables incurred in the Ordinary Course and intercompany
loans or advances between or among the Company and/or its direct or indirect wholly-owned Subsidiaries, (B) other Indebtedness
not to exceed $750,000 in the aggregate or (C) guarantees of Indebtedness of wholly owned Subsidiaries otherwise incurred in compliance
with this Section 7.1;
(xi) except
as set forth in the Company’s capital budget, make or authorize any capital expenditures in excess of $1,000,000 in the aggregate
during any fiscal quarter (it being understood that any portion of the capital expenditures budget for any fiscal quarter and such
$1,000,000 in excess thereof not expended in such fiscal quarter, beginning with the first quarter of the fiscal year ended March
31, 2021, may be carried forward and, together with any amount otherwise permissible pursuant to this paragraph (xi), expended
in any future fiscal quarter; provided that any excess amount not expended in the final quarter of a fiscal year will not be carried
forward into the next fiscal year);
(xii) other
than in the Ordinary Course, enter into any Contract that would have been a Material Contract had it been entered into prior to
this Agreement or amend, modify supplement, waive, terminate, assign, convey, Encumber or otherwise transfer, in whole or in part,
rights or interest pursuant to or in any Material Contract, other than (A) expirations of any such Contract in the Ordinary Course
in accordance with the terms of such Contract, or (B) non-exclusive licenses, covenants not to sue, releases, waivers or other
rights under Intellectual Property Rights owned by the Company or any of its Subsidiaries, in each case, granted in the Ordinary
Course;
(xiii) settle,
release, waive or compromise any Proceedings except solely for monetary payments of no more than $750,000 individually or $1,500,000
in the aggregate, net of applicable insurance payments, recoveries or proceeds, or on a basis that would (A) prevent or materially
delay consummation of the Merger or the Transactions, or (B) result in the imposition of any term or condition that would materially
restrict the future activity or conduct of the Company or its Subsidiaries or a finding or admission of a criminal violation of
Law;
(xiv) make
any changes (other than di minimis changes) with respect to accounting policies or procedures, except as required by GAAP
or applicable Law;
(xv) (A)
make, change or revoke any income or other material Tax election, (B) adopt or change any Tax accounting method, (C) file any amended
Tax Return, (D) enter into any closing agreement with respect to any Taxes, (E) settle any material Tax claim, audit, assessment
or dispute, (F) surrender any right to claim a refund of a material amount of Taxes, (G) consent to any extension or waiver of
any limitation period with respect to any material Tax claim or assessment, (H) enter into any Tax sharing or similar agreement
or arrangement, (I) fail to pay any material Tax that becomes due and payable or (J) incur any Taxes outside of the Ordinary Course;
(xvi) transfer,
sell, lease, license, divest, cancel, mortgage, pledge, surrender, encumber, abandon or allow to lapse or expire or otherwise dispose
of any assets (tangible or intangible), rights, properties, product lines or businesses, in whole or in part, material to it or
any of its Subsidiaries, including capital stock of any of its Subsidiaries, except for (A) sales of obsolete assets in the Ordinary
Course, (B) sales, leases or other dispositions of assets (not including services) with a Fair Value not in excess of $5,000,000
in the aggregate other than pursuant to Material Contracts in effect prior to July 20, 2020 and (C) non-exclusive licenses entered
into in the Ordinary Course and (D) Encumbrances securing Indebtedness permitted under this Section 7.1(b) and (E)
Permitted Encumbrances;
(xvii) except
as required pursuant to the terms of any Company Benefit Plan in effect as of July 20, 2020 or as otherwise required by applicable
Law, (A) grant or provide any severance or termination payments or benefits to any Company Employee or other service provider,
(B) increase the compensation or benefits payable to any Company Employee or other service provider, except for annual merit-based
increases in base salary or base wages in the Ordinary Course for Company Employees or other service providers who are not directors
or Executive Officers and whose annual base compensation is less than $250,000 (with no such increase to exceed three (3) percent
(3%)), (C) establish, adopt, enter into, amend or terminate any material Company Benefit Plan or other material benefit or compensation
plan, program, policy, agreement or arrangement that would be a Company Benefit Plan if in effect on July 20, 2020, (D) take any
action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under
any Company Benefit Plan other than vesting acceleration of all Company Options and Company RSUs in the Merger as contemplated
by Section 3.5(b), (E) grant any new awards, or amend or modify the terms of any outstanding awards (including, without
limitation, any Company Equity Awards), (F) change any actuarial or other assumptions used to calculate funding obligations with
respect to any Company Benefit Plan that is required by applicable Law to be funded or to change the manner in which contributions
to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (G) forgive
any loans, issue any loans or advance any loans to any current or former Company Employees, (H) hire or engage any employee or
engage any independent contractor (who is a natural person) with an annual base salary or wage rate or consulting fees in excess
of $275,000 or (I) terminate the employment or engagement of any Company Employee or other service provider whose annual base compensation
exceeds $275,000 other than for cause;
(xviii) recognize
any union, works council or other labor organization as the representative of any of the employees of the Company or any of the
Subsidiaries, or enter into, modify, or terminate any Company Labor Agreement, in each case, except as required by applicable Law;
(xix) implement
or announce any employee layoffs or location closings, that would implicate the WARN Act;
(xx) enter
into any Contract which contains a change in control or similar provision that would be triggered in connection with this Agreement
or the Merger;
(xxi) other
than in the Ordinary Course, amend or modify in any material respect, or extent, renew or terminate any lease, sublease, license
or other agreement for the use or occupancy of any real property, or enter into any new lease, sublease, license or other agreement
for the use or occupancy of any real property;
(xxii) maintain
insurance at less than current levels or otherwise in a manner inconsistent with past practice in any material respects;
(xxiii) engage
in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Company or other
Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404;
or
(xxiv) agree,
authorize or commit to do any of the foregoing.
(c) Notwithstanding
anything herein to the contrary, Parent, the Company and their respective Affiliates shall cooperate and negotiate in good faith
to mutually agree on remedial actions that are necessary or desirable with respect to the Tax Material Weakness (as defined in
Section 5.5 of the Company Disclosure Letter); provided that no such remedial action (including the filing
of any Tax Return or amendment of any Tax Return, the voluntary disclosure of any matter to any Governmental Entity, or any other
action taken in connection with the Tax Material Weakness) shall be taken unless Parent and the Company mutually agree in advance
that it is necessary or desirable for the Company or its applicable Subsidiary to take such action (any such remedial action, an
“Agreed Remedial Action”). With respect to each Agreed Remedial Action, the Company shall (and shall
cause its Subsidiaries to) (i) before submitting any application, documentation, Tax Return or other materials (including workpapers
and any supporting documentation) to any Governmental Entity in connection with such Agreed Remedial Action, providing such application,
documentation, Tax Return or other materials to Parent for Parent’s review and approval, (ii) keep Parent reasonably informed
of the progress with respect to the Agreed Remedial Action, including any material communications from any Governmental Entity
with respect to the Agreed Remedial Action; (iii) promptly provide Parent with copies of all material documents pertaining to the
Agreed Remedial Action; and (iv) not forfeit, surrender or abandon such Agreed Remedial Action without the prior written consent
of Parent (not to be unreasonably withheld, conditioned or delayed).
(d) Nothing
contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s
operations prior to the Effective Time. Prior to the Effective Time, without limiting or modifying the restrictions set forth in
Section 7.1(b), each of the Company and Parent shall exercise, consistent with the other terms and conditions of
this Agreement, complete control and supervision over their respective businesses.
7.2 No
Solicitation; Acquisition Proposals; Change in Recommendation.
(a) The
Company shall, and shall cause its Subsidiaries, Affiliates and their respective Representatives to, (i) immediately cease and
cause to be terminated any discussion or negotiations with any third party that may be ongoing with respect to an Acquisition Proposal,
and (ii) request 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 was entered into at any time within the twelve (12) month period
immediately preceding July 20, 2020 with respect to an Acquisition Proposal.
(i) Except
as expressly permitted by this Section 7.2, at all times during the period commencing with the execution and delivery
of this Agreement and continuing until the earlier to occur of the valid termination of this Agreement pursuant to Article
IX and the Effective Time, the Company shall, and shall cause its Subsidiaries and the directors and officers set forth
in Section 7.2(a)(i) of the Company Disclosure Letter, and shall instruct and use its reasonable best efforts to
cause its and its Subsidiaries’ other Representatives not to (A) initiate, solicit, facilitate, propose, knowingly encourage
or knowingly take any action to facilitate (including by way of furnishing information or providing access to the businesses, properties,
books, records or personnel, of the Company and its Subsidiaries) any inquiry or the making of any proposal or offer that constitutes,
or would reasonably be expected to lead to, an Acquisition Proposal; (B) engage in, continue or otherwise participate in any discussions
with or negotiations 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 provision prohibit such discussions); (C) provide any
information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected
to lead to an Acquisition Proposal; (D) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal; (E)
terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill,
confidentiality or similar agreement entered not by the Company or any of its Subsidiaries in respect of or in contemplation of
an Acquisition Proposal (other than to the extent the Company Board determines in good faith, based on the information then available
and after consultation with its outside legal counsel and financial advisors, that failure to take any such actions under clause
(C) would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law), (F) take any action
to make the provision of any takeover statue inapplicable to any transaction contemplated by an Acquisition Proposal, or (G) resolve
or agree to do any of the foregoing. Nothing in this Section 7.2 shall prohibit the Company, its Subsidiaries and its and
their respective Representatives from informing any Person of the existence of the provisions contained in this Section 7.2.
(b) Notwithstanding
anything in Section 7.2(a)(i) to the contrary, at any time following the execution of this Agreement and prior to
the time, but not after the Written Consent is delivered, in response to an unsolicited written Acquisition Proposal (if the Company
did not materially violate Section 7.2 with respect to such Person) that the Company Board believes in good faith
is bona fide, the Company and its Representatives may contact the Person or group of Persons making such Acquisition Proposal
to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, or could reasonably
be expected to result in, a Superior Proposal, and may:
(i) provide
information in response to a request therefor (including non-public information regarding the Company or any of its Subsidiaries)
to the Person who made such Acquisition Proposal; provided that such information has previously been made available to Parent
or its Representatives or is made available to Parent promptly (and in any event within thirty-six (36) hours) after such information
is made available to such Person and that, prior to furnishing any such information, the Company receives from the Person making
such Acquisition Proposal an executed confidentiality agreement with terms no more favorable in any material respect, individually
or in the aggregate, to the other party than those contained in the Confidentiality Agreement, it being understood that
such confidentiality agreements need not prohibit or restrict the making or amendment of an Acquisition Proposal; provided,
that (x) the Company shall not pay, agree to pay or cause to be paid, or reimburse, agree to reimburse or cause to be reimbursed
the expenses of any such Person in connection with any Acquisition Proposals (or inquiries, proposals or offers or other efforts
or attempts that may lead to an Acquisition Proposal), in each case, without the prior written consent of Parent and (y) the Company
shall implement reasonable protections for any competitively sensitive information or data provided to any such Person who is,
or whose Affiliates include, a key competitor, of the Company or any of its Subsidiaries (as determined by the Company Board in
its judgment); and
(ii) participate
in any discussions or negotiations with any such Person regarding such Acquisition Proposal;
in each case, if, and
only if, prior to taking any action described in clause (i) or (ii) above, the Company Board determines in good faith after consultation
with its outside legal counsel and financial advisor that based on the information then available and after consultation with its
financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result
in a Superior Proposal. Notwithstanding anything contained herein to the contrary, other than information to the extent included
in the Consent Solicitation Statement, the Company shall not and shall cause its Affiliates and Representatives not to disclose
or provide to any Person who has made an Acquisition Proposal (including such Person’s Affiliates and Representatives), any
information or materials provided by the Parent, its Affiliates or any of their Representatives to the Company or any of its Affiliates
or Representatives, including in any event any such information or materials provided by Parent, its Affiliates or any of their
Representatives in connection with Section 7.2(d); provided, that nothing shall preclude the Company or its Affiliates
or Representatives from disclosing anything pursuant to any subpoena, legal demand, interrogatories or similar legal process, any
regulation or Governmental Order, or as otherwise required by applicable Laws.
(c) Except
as permitted by Section 7.2(d) and Section 7.2(e), the Company Board, including any committee thereof,
shall not:
(i) (A)
withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation
with respect to the Merger in a manner adverse to Parent, (B) fail to include the Company Recommendation in the Consent Solicitation
Statement, (C) take any action or make any recommendation or public statement in connection with a tender offer or exchange offer
other than an unequivocal recommendation against such offer or a temporary “stop, look and listen” communication by
the Company Board of the type contemplated by Rule 14d-9(f) under the Exchange Act in which the Company Board or the Company indicates
that the Company Board has not changed the Company Recommendation, or (D) if reasonably requested by Parent, fail to reaffirm the
Company Recommendation within the earlier of twenty-four (24) hours prior to the expiry of the Principal Stockholder Postal Ballot
completion and five (5) Business Days after receiving a written request to do so from Parent;
(ii) approve,
authorize or recommend, or publicly declare advisable or publicly propose to enter into, approve, authorize or recommend any letter
of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint
venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in Section
7.2(b) entered into in compliance with Section 7.2(b)) providing for any Acquisition Proposal (an “Alternative
Acquisition Agreement,” and any of the actions set forth in the foregoing clauses (i) and (ii), a “Change
of Recommendation”); or
(iii) cause
or permit the Company to enter into an Alternative Acquisition Agreement.
(d) Notwithstanding
anything in this Agreement to the contrary, prior to the time the Written Consent is delivered, the Company Board may (A) effect
a Change of Recommendation if (1) a written Acquisition Proposal that the Company Board believes, after consultation with outside
legal counsel, in good faith is bona fide and that did not arise from or in connection with a material breach of the obligations
set forth in Section 7.2 is received by the Company and is not withdrawn, and the Company Board determines in good
faith, after consultation with outside legal counsel and its financial advisor, that such Acquisition Proposal constitutes a Superior
Proposal or (2) an Intervening Event has occurred and the Company Board determines in good faith, after consultation with outside
legal counsel and its financial advisor, that failure to take such action in response to such Superior Proposal or Intervening
Event, as applicable, would be inconsistent with the directors’ fiduciary duties under applicable Law or (B) take action
to terminate this Agreement pursuant to, and in accordance with, Section 9.4(a) to enter into an Alternative Acquisition
Agreement in connection with a Superior Proposal; provided, however, that a Change of Recommendation in response
to a Superior Proposal or Intervening Event or action to terminate this Agreement pursuant to Section 9.4(a) may
not be made (i) unless the Company shall have complied in all material respects with its obligations under this Section 7.2(d)
and (ii) unless and until the Company has given Parent written notice of such action four (4) Business Days in advance (a “Proposed
Change Notice”) setting forth in writing (I) in the case of a Superior Proposal, the identity of the person making
the Superior Proposal, the terms and conditions of such Superior Proposal, and an unredacted copy of such Superior Proposal (including
any materials related to such party’s proposed financing sources, if any) and (II) in the case of an Intervening Event, a
reasonable description of such facts and circumstances constituting an Intervening Event (it being agreed that, in each case, neither
the delivery of such notice by the Company nor any public announcement thereof that the Company determines in good faith, after
consultation with outside counsel, is required to be made under applicable Law shall constitute a Change of Recommendation); provided
that any material change to the facts and circumstances that constitute such Intervening Event shall be deemed a new Intervening
Event and the Company shall be required to deliver a new written notice to Parent. After giving such Proposed Change Notice and
prior to effecting such Change of Recommendation or taking such action to terminate the Agreement pursuant to Section 9.4(a),
the Company shall, and shall instruct its legal and financial advisors to, negotiate in good faith with Parent and its Representatives
throughout such four (4) Business Day period, to the extent Parent wishes to negotiate, to make such revisions to the terms of
this Agreement or any agreement entered into or delivered in connection herewith as would permit the Company Board not to effect
a Change of Recommendation or to take such action to terminate this Agreement pursuant to Section 9.4(a). At the
end of the four (4) Business Day period, prior to taking action to effect a Change of Recommendation or taking action to terminate
the Agreement pursuant to Section 9.4(a), the Company Board shall take into account any changes to the terms of this
Agreement, the Equity Commitment Letter or the Limited Guaranty proposed by Parent in writing and any other information offered
by Parent in response to the Proposed Change Notice, and shall have determined in good faith that (i) in the case of a Superior
Proposal, the Superior Proposal would continue to constitute a Superior Proposal, and (ii) in the case of an Intervening Event,
the failure to effect a Change of Recommendation in response to such Intervening Event would be inconsistent with the directors’
fiduciary duties under applicable Law, in each case, if such changes offered in writing were to be given effect. Any material amendment
to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(d),
except that the four (4) Business Day period set forth in this Section 7.2(d) shall be five (5) Business Days for
such deemed new Acquisition Proposal (the four (4) Business Day period or the five (5) Business Day period, as applicable, the
“Parent Match Period”).
(e) Nothing
contained in this Section 7.2 shall be deemed to prohibit the Company or any of its Subsidiaries, or any of their
respective boards of directors or any committee thereof, from complying with its disclosure obligations under any Laws, including
U.S. federal or state law, with regard to an Acquisition Proposal; provided, however, that (i) if such disclosure
includes a Change of Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation,
such disclosure shall be deemed to be a Change of Recommendation and (ii) in no event shall the Company effect, or agree or resolve
to effect, a Change of Recommendation other than in compliance with this Section 7.2.
(f) The
Company shall not release any third party from, or waive, amend or modify any provision of, or grant permission under or fail to
enforce, any standstill provision in any confidentiality agreement in connection with an Acquisition Proposal to which the Company
is a party that remains in effect following the execution of this Agreement; provided, that, notwithstanding anything
to the contrary contained in this Agreement, if the Company Board determines in good faith, after consultation with its outside
legal counsel, the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable
Law, then the Company may waive any such standstill provision to the extent necessary to permit a third party to make an Acquisition
Proposal.
(g) The
Company shall promptly (and, in any event, within twenty-four (24) hours) give written notice to Parent if (i) any inquiries, proposals
or offers with respect to an Acquisition Proposal are received by, (ii) any non-public information is requested in connection with
any Acquisition Proposal from, or (iii) any discussions or negotiation with respect to an Acquisition Proposal are sought to be
initiated or continued with, it or any of its Representatives, indicating, in connection with such notice the name of such Person
or group and the material terms and conditions of any proposals or offers (including, if applicable, unredacted copies of any written
requests, proposals or offers, including proposed agreements, or where no such copies are available, a reasonably detailed written
description thereof) and thereafter shall keep Parent reasonably informed, on a current basis (and, in any event, within thirty-six
(36) hours), of the status and material terms of any such proposals, or offers (including any material amendments thereto) and
any material changes to the status of any such discussions or negotiations, including any change in the Company’s intentions
as previously notified.
(h) The
Company agrees that any material breach of this Section 7.2 by any of its Representatives, including any of its directors
and officers named in the definition of “Knowledge”, the Company Financial Advisor, or Sheppard, Mullin, Richter &
Hampton, LLP shall be deemed to be a breach of this Agreement by the Company. Representatives, as used in this Section 7.2(h)
shall mean any director, officer, principal, partner, limited liability company manager, senior employee, investment banker, financial
advisor, legal counsel, attorney in fact or outside accountant of the Principal Stockholder, the Company or any of their Subsidiaries,
in each case acting in their capacity as such.
7.3 Principal
Stockholder Postal Ballot; Stockholder Written Consent. If the Principal Stockholder obtains the requisite votes for the Principal
Stockholder Shareholder Approval pursuant to the postal balloting process, in accordance with applicable Law (the “Principal
Stockholder Postal Ballot”), the Company shall, in accordance with the CCC, use its reasonable best efforts to deliver
the Written Consent within two (2) Business Days following the publication through the stock exchange in India of the voting results
of the shareholders’ resolution relating to the Principal Stockholder Shareholder Approval (the “Consent Delivery
Deadline”).
7.4 Consent
Solicitation Statement.
(a) The
Company shall prepare and file with the SEC as promptly as practicable after July 20, 2020, and in any event no later than August
14, 2020, a preliminary Consent Solicitation Statement. The Company shall cause the Consent Solicitation Statement filed or furnished
by the Company or its Subsidiaries to comply as to form in all material respects with the provisions of the SEC and the rules and
regulations promulgated thereunder and to satisfy all rules of Nasdaq. The Company shall provide Parent and its Representatives
with a reasonable opportunity to review and comment on the Consent Solicitation Statement prior to filing. The Company shall give
due consideration to all reasonable additions, deletions or changes suggested by Parent or its respective counsel. The Company
shall promptly notify Parent of the receipt of all comments of the SEC with respect to the Consent Solicitation Statement and of
any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent
copies of all correspondence (and reasonable summaries of all oral comments or conversations) between the Company and/or any of
its Representatives, on the one hand, and the SEC, on the other, with respect to the Consent Solicitation Statement. As promptly
as reasonably practicable, and after consultation with Parent, the Company shall use reasonable best efforts to respond to any
comments made by the SEC with respect to the Consent Solicitation Statement. The Company shall provide Parent and its Representatives
with a reasonable opportunity to review and comment on any responses to comments from the SEC on the Consent Solicitation Statement
or any amendments or supplements to the Consent Solicitation Statement prior to the filing of such responses, amendments or supplements.
The Company shall cause the Consent Solicitation Statement (substantially in the form last filed and/or cleared) to be promptly
filed with the SEC in definitive form and then to be mailed to the stockholders of the Company as promptly as practicable, and
in any event within five (5) Business Days after the latest of (i) confirmation from the SEC that it has no further comments on
the Consent Solicitation Statement, (ii) confirmation from the SEC that the Consent Solicitation Statement is otherwise not to
be reviewed and (iii) expiration of the ten (10) day period after filing of the preliminary Consent Solicitation Statement in the
event the SEC does not review the Consent Solicitation Statement (the “SEC Clearance Date”).
(b) Parent
shall, and shall use its reasonable best efforts to cause its Representatives to use their reasonable best efforts to, cooperate
with the Company in the preparation of the Consent Solicitation Statement. Without limiting the generality of the foregoing, each
of Parent and Merger Sub shall furnish to the Company the information relating to Parent and its Affiliates required by the Exchange
Act and the rules and regulations promulgated thereunder to be set forth in the Consent Solicitation Statement. The Company acknowledges
and agrees that none of the information supplied by it or any of its Subsidiaries for inclusion or incorporation by reference in
the Consent Solicitation Statement will, at the date of the mailing to the stockholders of the Company 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.
(c) If,
at any time prior to the Effective Time, any information relating to Parent or the Company or any of their respective Affiliates
is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Consent Solicitation Statement
so that such document 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 were made, not misleading, the Party discovering this information
shall, as promptly as reasonably practicable (and in any event within thirty-six (36) hours), notify the other parties to this
Agreement and, to the extent required by Law, Parent and the Company shall cause an appropriate amendment or supplement describing
this information, as promptly as reasonably practicable, to be filed with the SEC and, to the extent required by Law, disseminated
to the stockholders of the Company.
7.5 Approval
of Sole Stockholder of Merger Sub; Obligations of Merger Sub.
(a) Immediately
following execution of this Agreement, Parent shall execute and deliver, in accordance with applicable Law and its Organizational
Documents, in its capacity as sole stockholder of Merger Sub, a written consent approving the plan of merger contained in this
Agreement.
(b) Parent
shall take all action necessary to cause Merger Sub and the Surviving Corporation to perform their respective obligations under
this Agreement and to consummate the Merger and the other Transactions upon the terms and subject to the conditions set forth in
this Agreement. Parent and Merger Sub will be jointly and severally liable for the failure by either of them to perform and discharge
any of their respective covenants, agreements and obligations pursuant to and in accordance with this Agreement.
7.6 Cooperation;
Efforts to Consummate.
(a) On
the terms and subject to the conditions of this Agreement, the Company and Parent shall cooperate with each other and use, and
shall cause their respective Subsidiaries, and with respect to Parent, its Affiliates, to use, their respective reasonable best
efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable
on its part under this Agreement and applicable Law to consummate and make effective the Transactions as soon as reasonably practicable,
including (i) preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports
and other filings (including (x) by filing no later than ten (10) Business Days after July 20, 2020, the notification and report
form required under the HSR Act, and (y) by filing as soon as practicable all other notifications (or, where customary, draft notifications
to be followed in the ordinary course by formal notifications) required under the Antitrust Laws of the other jurisdictions listed
in Section 8.1(b) of the Company Disclosure Letter, and in each case requesting, where applicable, early termination
of the waiting periods with respect to the Merger), (ii) responding as promptly as reasonably practicable to any informal and formal
inquiries or requests for documentation or information or any request for additional information (a “second request”)
received from the US Federal Trade Commission or the US Department of Justice and to all inquiries and requests received from any
other Governmental Entity in connection with Antitrust Law matters, and (iii) obtaining as promptly as reasonably practicable all
consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party or any
Governmental Entity in order to consummate the Transactions. Parent shall pay 100% of all filing fees required under any Antitrust
Laws. Nothing in this Agreement shall require or be construed to require Parent, the Company or its Subsidiaries to proffer to,
or agree to, incur any liabilities or any sale, divestiture, license, disposition or holding separate of, or any termination, prohibition,
limitation, restriction or other action with respect to existing relationships, contracts, assets, product lines or businesses
or interests therein of Parent, the Company or any of its Subsidiaries unless the effectiveness of such action is conditioned upon
the Closing.
(b) Subject
to applicable Law relating to the exchange of information, Parent and the Company shall have the right to review in advance and,
to the extent reasonably practicable, each will consult with the other on and consider in good faith the views of the other in
connection with, all of the information relating to Parent or the Company, as applicable, and any of their respective Subsidiaries,
and with respect to Parent, its other Affiliates, that appears in any filing made with, or written materials submitted to, any
third party or any Governmental Entity in connection with the Transactions (including the Consent Solicitation Statement). Neither
the Company nor Parent shall permit any of its officers or other Representatives to participate in any meeting or substantive correspondence
or substantive telephone discussion with any Governmental Entity in respect of any filings, investigation or other inquiry relating
to the Transactions unless it consults with the other Party in advance and, unless prohibited by such Governmental Entity, gives
the other Party the opportunity to attend and participate thereat. Notwithstanding the foregoing or anything to the contrary in
this Agreement, subject to applicable Laws, Parent shall be primarily responsible for directing the process by which the parties
seek to avoid or eliminate impediments under any applicable Antitrust Laws and shall take the lead in all discussions, negotiations
and other communications with Governmental Entities, provided that Parent shall consult with and consider in good faith
the views of the Company and permit participation in accordance with the immediately preceding sentence. In exercising the foregoing
rights, each of the Company and Parent shall act reasonably and as promptly as reasonably practicable. Notwithstanding the foregoing,
any materials required to be provided by a Party to the other pursuant to this Section 7.6 may: (i) be restricted
to outside legal counsel only as necessary to protect competitively or commercially sensitive materials, or (ii) be reasonably
redacted as necessary to address attorney-client or other privilege concerns or as necessary to comply with contractual arrangements.
(c) Without
limiting the generality of the undertakings pursuant to this Section 7.6, but on the terms and subject to the conditions
set forth in this Agreement, including clause (vi) below, each of the Company (in the case of clause (i) below) and Parent (in
the case of clauses (i), (ii), (iii), (iv), (v) and (vi) below) agrees to take or cause to be taken the following actions:
(i) promptly
provide, if advisable, to each and every federal, state, local or foreign court or Governmental Entity with jurisdiction over enforcement
of any applicable Antitrust Law (each, a “Governmental Antitrust Entity”) copies of non-privileged, non-attorney
work product protected information and documents reasonably requested by any Governmental Antitrust Entity or that are reasonably
necessary, proper or advisable to permit consummation of the Transactions;
(ii) promptly
use its reasonable best efforts to take all reasonably necessary, proper or advisable steps to (A) avoid the entry of, and (B)
resist, vacate, modify, reverse, suspend, prevent, eliminate or remove any actual, anticipated or threatened temporary, preliminary
or permanent injunction or other order, decree, decision, determination or judgment in any Proceeding or inquiry of any kind pursuant
to Antitrust Laws, in the case of each of the foregoing clauses (A) and (B), that would reasonably be expected to delay, restrain,
prevent, enjoin or otherwise prohibit or make unlawful the consummation of the Transactions, including the defense through litigation
on the merits of any claim asserted in any court, agency or other Proceeding by any Person pursuant to Antitrust Laws or before
any Governmental Antitrust Entity seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions
and the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending
such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, assets, operations, rights,
product lines, licenses, businesses or interests therein of the Company, Parent, either of their respective Subsidiaries or, with
respect to Parent, its other Affiliates (and the entry into agreements with, and submission to orders of, the relevant Governmental
Antitrust Entity giving effect thereto) if such action should be reasonably necessary, proper or advisable so as to permit the
consummation of the Transactions as promptly as practicable (it being understood that, no such action will be binding on
the Company, Parent or any of their respective Affiliates unless it is contingent upon the occurrence of the Closing);
(iii) promptly
use its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order,
judgment, determination, decree or Law is entered, issued or enacted, or becomes reasonably foreseeable to be entered, issued or
enacted, in any Proceeding, review or inquiry of any kind that would make consummation of the Merger or the other Transactions
in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation
of the Merger or the other Transactions, any and all steps (including, without limitation, the appeal thereof, the posting of a
bond or the taking of the other steps contemplated hereby) as may be necessary or appropriate to resist, vacate, modify, reverse,
suspend, prevent, eliminate, avoid any injunction, decision, order, judgment, determination, decree or enactment so as to permit
such consummation on a schedule as close as possible to that contemplated by this Agreement;
(iv) not
extend any waiting period under the HSR Act or other Antitrust Laws or enter into any agreement with any Governmental Antitrust
Entity not to consummate the Transactions, except with the prior written consent of the Company, which consent shall not be unreasonably
withheld or delayed;
(v) not
enter and cause its Affiliates not to, enter into any transaction, or any agreement to effect any transaction (including any merger
or acquisition), that would reasonably be expected to make it more difficult, or to increase the time required, to (x) obtain the
expiration of the waiting period under the HSR Act or any other Antitrust Law applicable to the Transactions or (y) obtain all
other authorizations, consents, orders, and approvals of Governmental Antitrust Entities necessary for the consummation of the
Transactions.
7.7 Status;
Notifications. Subject to applicable Law and as otherwise required by any Governmental Entity, the Company and Parent each
shall keep the other apprised of the status of matters relating to the consummation of the Transactions, including promptly (and
in any event within thirty-six (36) hours) furnishing the other with copies of material notices or other material communications
received by Parent or the Company, as applicable, or any of their respective Subsidiaries, from any third party or any Governmental
Entity with respect to the Transactions.
7.8 Information;
Access and Reports.
(a) Subject
to applicable Laws, the Company and Parent each shall, upon reasonably request by the other, furnish the other with all information
concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary
in connection with the Consent Solicitation Statement, or any other statement, filing, notice or application made by or on behalf
of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection
with the Transactions. From July 20, 2020 until the earlier of termination of this Agreement pursuant to Article IX
and the Effective Time, upon reasonable prior notice and subject to applicable Law, the Company has and shall (i) give to Parent,
its counsel, financial advisors, auditors and other authorized Representatives reasonable access during normal business hours to
the offices, properties, employees, books and records of the Company and its Subsidiaries and (ii) furnish to Parent, its counsel,
financial advisors, auditors and other authorized Representatives such financial, Tax and operating data and other information
as Parent may reasonably request, provided that, in each case, the Company shall not be required to permit any inspection, or disclose
any document or information, that would, in the reasonable judgment of the Company, in consultation with outside counsel, (A) result
in the disclosure of any competitively sensitive information or Trade Secrets of any third parties or violate the terms of any
confidentiality provisions in any agreement with a third party entered into prior to July 20, 2020 (or entered into after July
20, 2020 in compliance with Section 7.1), (B) result in a violation of applicable Law, including any fiduciary duty
and Antitrust Laws, (C) waive the protection of any attorney-client privilege or (D) result in the disclosure of any sensitive
or personal information that would expose the Company to the risk of liability. In the event that the Company objects to any request
submitted pursuant to and in accordance with this Section 7.8 and withholds information on the basis of the foregoing
clauses (i) through (iii), the Company shall inform the Parent as to the general nature of what is being withheld and the Company
and Parent shall cooperate in good faith to make appropriate substitute arrangements to permit reasonable disclosure that does
not suffer from any of the foregoing impediments, including through the use of commercially reasonable efforts to (A) obtain the
required consent or waiver of any third party required to provide such information and (B) implement appropriate and mutually agreeable
measures to permit the disclosure of such information in a manner to remove the basis for the objection. Notwithstanding anything
to the contrary in this Section 7.8 or elsewhere in this Agreement, neither Parent nor any of its Representatives
will be permitted to collect or analyze any environmental samples or perform any invasive environmental investigation of the type
commonly referred to as a “Phase II” environmental investigation with respect to any property of the Company or any
of its Subsidiaries pursuant to the access provisions of this Section 7.8. All information made available or disclosed
pursuant to this Section 7.8 shall be subject to the terms of the Confidentiality Agreement.
(b) To
the extent that any of the information or material furnished pursuant to this Section 7.8 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. It is the
intention of the Parties that 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.
(c) No
exchange of information or investigation by Parent or its Representatives shall affect or be deemed to affect, modify or waive
the representations and warranties of the Company set forth in this Agreement.
7.9 Publicity.
The initial press release with respect to the Transactions shall be a joint press release reasonably acceptable to Parent and the
Company and thereafter the Company and Parent shall consult with each other, and provide meaningful opportunity for review and
give due consideration to reasonable comments by the other Party, prior to issuing any press releases or otherwise making planned
public statements with respect to the Transactions and prior to making any filings with any third party or any Governmental Entity
(including any national securities exchange) with respect thereto, except (a) as may be required by applicable Law or by obligations
pursuant to any listing agreement with or rules of any national securities exchange, (b) with respect to any Change of Recommendation
made in accordance with this Agreement or Parent’s response thereto or (c) any communications or disclosures by Parent, Merger
Sub and their Affiliates 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 and deal
descriptions on such Person’s website in the ordinary course of business. Notwithstanding anything to the contrary in this
Section 7.9, 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
are not inconsistent with previous press releases, public disclosures or public statements made jointly by Parent and the Company.
7.10 Employee
Benefits.
(a) Parent
agrees that each employee of the Company and its Subsidiaries at the Effective Time who continues to remain employed with the Company
or its Subsidiaries immediately following the Effective Time (a “Continuing Employee”), as a group, shall,
during the period commencing at the Effective Time and ending on the date that is twelve (12) months following the Effective Time
(or if earlier, the date of the Continuing Employee’s termination of employment with the Company or the applicable Subsidiary)
(the “Continuation Period”), be provided with (i) base salary or base wage and target annual cash incentive
opportunities (excluding long term or equity-based compensation awards or benefits, change in control, severance, retention or
similar bonuses) consistent with market-based compensation practices for employees at similar companies as the Company and having
substantially similar positions as the applicable Continuing Employee, and (ii) employee benefits (other than defined benefit pension,
deferred compensation, post-termination or retiree health or welfare benefits, or equity based awards or benefits, but specifically
including severance and other termination protections to the extent set forth on 5.8(a) of the Company Disclosure Letter)
that are substantially comparable in the aggregate to those provided to such Continuing Employees under the Company Benefit Plans
as in effect immediately prior to the Effective Time (other than defined benefit pension, deferred compensation, post-termination
or retiree health or welfare benefits, or equity based awards or benefits, but specifically including severance and other termination
protections to the extent set forth on Section 5.8(a) of the Company Disclosure Letter). For the avoidance of doubt,
Parent shall, during the Continuation Period, provide, or shall cause the Surviving Corporation to provide, severance benefits
to any Continuing Employee whose employment is terminated following the Closing Date that are at least as favorable as those that
would have been payable to such Continuing Employee prior to the Closing Date. If the Closing occurs prior to the time or times
at which the Company would pay earned and accrued bonuses in respect of the 2021 fiscal year in the Ordinary Course, to the extent
not previously paid, Parent shall, or shall cause the Surviving Corporation to, pay such bonuses based on actual performance (as
determined by the Surviving Corporation) and the terms of the applicable bonus plan; provided, that the performance targets shall
not take into account the impact of the Merger (or any related charges); provided further, that, notwithstanding the terms of the
applicable bonus plan, Parent shall cause all such earned and accrued bonuses to be paid to any employees terminated for any reason
other than for cause after the Closing Date.
(b) With
respect to any employee benefit plans that replace existing Company Benefit Plans that are health and welfare or defined contribution
retirement benefit plans and in which Continuing Employees become eligible to participate during the Continuation Period (each,
a “New Plan”), Parent shall, or shall cause the Surviving Corporation to, use commercially reasonable
efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any New Plans providing group
health benefits in the plan year in which the Effective Time occurs to be waived with respect to the Continuing Employees and their
eligible dependents to the extent waived or satisfied under the analogous Company Benefit Plan in which the Continuing Employees
and their eligible dependents participate immediately prior to the Effective Time, (ii) give each Continuing Employee credit for
the plan year in which the Effective Time occurs towards applicable deductibles and annual out-of-pocket limits under the applicable
New Plan providing group health benefits for medical expenses incurred during the portion of plan year prior to the Effective Time
for which payment has been made under the corresponding Company Benefit Plan, and (iii) give each Continuing Employee service credit
for such Continuing Employee’s employment with the Company and its Subsidiaries for purposes of vesting, determining the
level of vacation benefits and eligibility to participate under each applicable New Plan, as if such service had been performed
with the Surviving Corporation, Parent or their relevant Affiliate, to the same extent such service was credited for the same purpose
under the analogous Company Benefit Plan, as applicable, except for benefit accrual under defined benefit pension plans or any
purpose under any equity-based plan or arrangement or to the extent it would result in a duplication of benefits or compensation.
(c) Nothing
contained in this Agreement is intended to (i) be treated as an establishment, modification or amendment of any Company Benefit
Plan, New Plan, or any other benefit or compensation plan, program, policy, practice, agreement or arrangement, (ii) prevent or
limit the ability of Parent, the Surviving Corporation or any of their Affiliates from amending, modifying, or terminating any
benefit or compensation plans, programs, policies, practices, agreements or arrangements or any Company Benefit Plan at any time
assumed, established, sponsored or maintained by any of them, (iii) prevent Parent, the Surviving Corporation or any of their Affiliates
from modifying or terminating (for any or no reason) the employment or service, or any particular term or condition of employment
or service, of any Continuing Employee or any other Person, or (iv) create any rights in any employee of the Company or any of
its Subsidiaries, any beneficiary or dependent thereof, or any collective bargaining representative thereof, or any rights or remedies
(including any third-party beneficiary rights) in any Person (other than the Parties to this Agreement) for any purpose. The parties
further agree that the covenants set forth in this Section 7.10 shall not apply to employees during any period in which
such employees are furloughed, terminated, temporarily laid off or subject to reduced hours or benefits or compensation as a result
of COVID-19-related circumstances.
(d) To
the extent reasonably practicable, prior to making any broad-based written or oral communications to the directors, officers or
employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Merger
or the other transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication,
Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate
in providing any such mutually agreeable communication.
7.11 Expenses.
Except as otherwise provided in this Agreement, whether or not the Merger is consummated, all costs and expenses incurred in connection
with the preparation, negotiation, execution and performance of this Agreement and the Transactions, including all fees and expenses
of its Representatives, shall be paid by the Party incurring such expense.
7.12 Indemnification;
Directors’ and Officers’ Insurance.
(a) For
a period of six (6) years from and after the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving
Corporation to) indemnify and hold harmless, to the fullest extent permitted under applicable Law and the Company’s and its
Subsidiaries’ Organizational Documents in effect as of July 20, 2020, each present and former (determined as of the Effective
Time) director and officer of the Company and its Subsidiaries, in each case, when acting in such capacity or in serving as a director,
officer, member, trustee, Representative or fiduciary of another entity or enterprise, including a Company Benefit Plan, at the
request or for the benefit of the Company or any of its Subsidiaries (collectively, the “Indemnified Parties”),
against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities
incurred in connection with, arising out of or otherwise related to any Proceeding, in connection with, arising out of or otherwise
related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the
Effective Time, including in connection with (i) the Transactions, and (ii) actions to enforce this provision or any other indemnification
or advancement right of any Indemnified Party, and Parent or the Surviving Corporation shall also advance reasonable documented
out-of-pocket expenses as incurred to the fullest extent permitted to do so under applicable Law and the Company’s and its
Subsidiaries’ Organizational Documents in effect as of July 20, 2020; provided that any Person to whom expenses are
advanced shall promptly repay such advances if it is ultimately determined by final adjudication that such Person is not entitled
to indemnification.
(b) Prior
to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the
Effective Time to, obtain and fully pay the premium for “tail” insurance policies (providing only for the Side A coverage
where the existing policies also include Side B coverage for the Company) 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 six years from and
after the 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 July 20, 2020 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 matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or
the Transactions). If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance
policies as of the Effective Time, 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 July 20, 2020 with terms, conditions, retentions
and limits of liability that are at least as favorable to the insureds as provided in the Company’s and its Subsidiaries’
existing policies as of July 20, 2020, 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 as provided in the Company’s and its Subsidiaries’ existing policies as of July 20, 2020; provided,
however, that in no event shall the annual premium of the D&O Insurance during the Tail Period exceed 300 percent of
the last annual premium paid by the Company for such purpose; and provided, further, that if the cost of such insurance
coverage exceeds such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not
exceeding such amount. If such prepaid policies have been obtained prior to the Effective Time, the Company and the Surviving Corporation,
as applicable, shall, and Parent shall cause the Surviving Corporation to, maintain such policies in full force and effect, and
continue to honor the obligations thereunder.
(c) During
the Tail Period, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to
the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided
in the Organizational Documents of the Company and its Subsidiaries or any indemnification agreement between such Indemnified Party
and the Company or any of its Subsidiaries, in each case, as in effect on July 20, 2020, shall survive the Transactions unchanged
and shall not be amended, restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder
of any such Indemnified Party.
(d) If
Parent, the Surviving Corporation or any of its successors or assigns (i) shall consolidate with or merge into any other Person
and shall not be the continuing or surviving Person of such consolidation or merger or (ii) shall transfer all or substantially
all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors
and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section
7.12.
(e) The
rights of the Indemnified Parties under this Section 7.12 are in addition to any rights such Indemnified Parties
may have under the Organizational Documents of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws,
and nothing in this Agreement is intended to, shall be construed or shall release, waive or impair any rights to directors’
and officers’ insurance claims under any policy or Contract that is or has been in existence with respect to the Company
or any of its Subsidiaries for any of their respective directors, officers or other employees (it being understood that
the indemnification provided for in this Section 7.12 is not prior to or in substitution of any such claims under
such policies).
(f) This
Section 7.12 is intended to be for the benefit of, and from and after the Effective Time shall be enforceable by,
each of the Indemnified Parties, who shall be third party beneficiaries of this Section 7.12.
7.13 Financing
and Financing Cooperation.
(a) No
Amendments to Financing Commitment Letters. Subject to the terms and conditions of this Agreement, each of Parent and Merger
Sub will not (without the prior written consent of the Company) permit any amendment or modification (including an amendment or
modification effected by way of side letter) to be made to, or any waiver of any provision or remedy pursuant to, the Equity Commitment
Letter if such amendment, modification or waiver would or could reasonably be expected to, (i) impose new or additional conditions
precedent to the funding of the Financing, in a manner that would, or could reasonably be expected to (A) delay or prevent the
consummation of the Merger, or (B) make the timely funding of the Financing less likely to occur in any respect, or (ii) adversely
impact the ability of Parent, Merger Sub or the Company (solely with respect to the Equity Commitment Letter), to enforce its rights
against the other parties to the Equity Commitment Letter or the definitive agreements with respect thereto.
(b) Equity
Financing. Parent shall take (or cause to be taken) all actions and do (or cause to be done) all things necessary, proper or
advisable to obtain the Financing, including by (i) maintaining in effect the Equity Commitment Letter, (ii) complying with its
obligations under the Equity Commitment Letter, (iii) satisfying on a timely basis all conditions applicable to Parent or Merger
Sub in such Equity Commitment Letter, (iv) enforcing its rights under the Equity Commitment Letter, including through the initiation
of legal proceedings against the Equity Financing Source if and to the extent necessary to obtain the Financing contemplated thereby
and (v) consummating the Financing at or prior to Closing, including by causing the Equity Financing Source to fund the Financing
at the Closing, in each case in accordance with the terms of this Agreement and the Equity Commitment Letter.
(c) Information.
Parent shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to arrange the Financing
and shall provide the Company with copies of all executed definitive agreements and all exhibits thereto related to the Financing.
Without limiting the generality of the foregoing, Parent and Merger Sub shall promptly notify the Company (i) of any material breach
or default by any party to the Equity Commitment Letter or definitive agreements related to the Financing of which Parent has Knowledge,
(ii) of the receipt by Parent or Merger Sub of any written notice or communication from the Equity Financing Source with respect
to any breach, default, termination or repudiation (in each case, alleged or otherwise) by any party to the Equity Commitment Letter
or any definitive agreement related to the Financing of any provisions of the Equity Commitment Letter or such definitive agreement
and (iii) if for any reason, Parent or Merger Sub at any time believes it will not be able to obtain all or any portion of the
Financing on the terms, in the manner or from the sources contemplated by the Equity Commitment Letter or any definitive agreements
related to the Financing; provided, however, that in no event will Parent be under any obligation to disclose any information
pursuant to the preceding clauses (i), (ii) or (iii) that is subject to attorney-client or similar privilege; provided,
further, that Parent shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure
of such information in a manner that would not risk waiver of such privilege.
(d) Financing
Cooperation.
(i) Prior
to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of
its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal
Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably
requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions
contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing
in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose
any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate
any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an
appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings”
and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with
prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information
memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings
agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary
authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information
about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of
the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required
Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary
perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably
requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company,
if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably
required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting
in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective
upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that
the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section
7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any
covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII
to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to
the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection
with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries
or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document,
certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries
shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing
is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause
each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event
at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company
and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth
in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks
or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in
a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation
or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1)
Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably
acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required
to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and,
if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses
outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens
and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c)
wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational
actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority
of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company
and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon
the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and
expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13.
Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities
incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising
from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives),
whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and
Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that
obtaining the Financing is not a condition to the Closing.
7.14 Takeover
Statutes. If any Takeover Statute is or may become applicable to the Transactions, each of Parent and the Company and the Parent
Board and the Company Board, respectively, shall grant such approvals and take such actions as are necessary so that the Transactions
may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize
the effects of such statute or regulation on the Transactions.
7.15 Section
16 Matters. The Company and the Company Board (or duly formed committees thereof consisting of non-employee directors (as such
term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)), shall, as of immediately prior to the Effective
Time and subject to applicable Law, take all such steps as may be reasonably necessary or advisable hereto to cause any dispositions
of Company equity securities (including derivative securities) pursuant to the Transactions by each individual who is a director
or officer of the Company 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. The Company shall provide to Parent or its counsel for review
and approval drafts of any documentation prepared by the Company or its counsel to effectuate the foregoing and shall consider
in good faith Parent’s comments thereto.
7.16 Transaction
Litigation. Prior to the Effective Time, in the event that any stockholder litigation related to this Agreement or the Transactions
is brought or, to the Knowledge of the Company, threatened against the Company or any members of the Company Board (other than
any Proceeding in connection with, arising out of or otherwise related to a demand for dissenters’ rights under Sections
1300 through 1313 of the CCC, which shall be governed by Section 4.7) (“Transaction Litigation”),
the Company shall as promptly as reasonably practicable notify Parent of such Transaction Litigation, including by providing copies
of all pleadings with respect thereto. Thereafter, the Company shall keep Parent reasonably informed with respect to the status
thereof. The Company shall (a) give Parent the opportunity to participate in the defense, settlement or prosecution of any Transaction
Litigation and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. For
purposes of this Section 7.16, “participate” means that Parent will be kept reasonably apprised of proposed
strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client
privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions
with respect to such Transaction Litigation which the Company shall consider in good faith, but Parent will not be afforded any
decision making power or other authority over such Transaction Litigation; provided, that no settlement, arrangement, agreement
or compromise shall be offered or entered into with respect to any Transaction Litigation without the consent of Parent (not to
be unreasonably withheld, delayed or conditioned).
7.17 Deregistration.
Prior to the Closing Date, the Company shall cooperate with Parent and use reasonable best efforts to take, or cause to be taken,
all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws
and rules and policies of Nasdaq to enable the termination by the Surviving Corporation of the listing of the Company Common Stock
on Nasdaq as promptly as practicable after the Effective Time and the deregistration of the Company Common Stock under the Exchange
Act as promptly as practicable after such delisting.
7.18 Notice
of Certain Events. Prior to the Closing Date, the Company and Parent shall, as promptly as reasonably practicable, notify the
other in writing of:
(a) any
notice or other communication received from any Person alleging that the consent, approval, permission or waiver from such Person
is or may be required in connection with the Merger;
(b) any
notice or other communication received from any Governmental Entity in connection with the Transactions; and
(c) the
occurrence or non-occurrence of any event whose occurrence or non-occurrence would be reasonably likely to cause any condition
to the Merger or the other Transactions to be unsatisfied at the Effective Time, including the failure of any representation or
warranty contained in this Agreement to be true or accurate at or prior to the Closing that would reasonably be expected to give
rise to the failure of any of the conditions set forth in Section 8.2 or 8.3, as applicable, to be
satisfied.
provided, however, that no failure to give
such notification shall separately constitute a failure of any condition in Article VIII or a basis to terminate
this Agreement unless the underlying fact, event or circumstance would independently result in such failure or provide such basis,
and no notification given by any party pursuant to this Section 7.18 shall (i) limit or otherwise affect any of the
representations, warranties, covenants, obligations or conditions contained in this Agreement, (ii) otherwise prejudice in any
way the rights and remedies contained in this Agreement, (iii) be deemed to affect or modify Parent’s reliance on the representations,
warranties, covenants and agreements made by the Company in this Agreement or (iv) be deemed to amend or supplement the Company
Disclosure Letter or prevent or cure any misrepresentation, breach of warranty or breach of covenant by the Company. All information
provided pursuant to this Section 7.18 shall be governed by the terms of the Confidentiality Agreement.
7.19 Works
Councils. The Company and its Subsidiaries shall use commercially reasonably efforts to comply in all material respects with
all notification, consultation and other processes, including with respect to any works council, economic committee, labor union
or similar body, that are necessary to effectuate the Transactions. Parent shall take all steps reasonably required for the Company
and its Subsidiaries to comply with such processes.
7.20 Resignations.
At the written request of Parent, the Company shall cause each director of the Company or any director of any of the Company’s
Subsidiaries to resign in such capacity, with such resignations to be effective as of the Effective Time.
7.21 FIRPTA
Certificate. Prior to the Closing (but no earlier than ten (10) days prior to the Closing), the Company shall deliver to Parent
an affidavit, under penalties of perjury, from the Company certifying that the Company is not a United States real property holding
corporation, dated as of the Closing Date, together with the letter of notice to the U.S. Internal Revenue Service in accordance
with the provisions of Treasury Regulation Section 1.897-2(h)(2), in each case and in the form attached hereto as Exhibit
D (the “FIRPTA Certificate”).
7.22 Contract
Assignment. The Company shall use its reasonable best efforts to cause the removal of the Principal Stockholder as a party
from the contract set forth on Section 7.22 of the Company Disclosure Letter and to assign to the Company all of
the Principal Stockholder’s rights, title and interest in such contract. Parent shall, and shall use its reasonable best
efforts to cause its Representatives to use their reasonable best efforts to, cooperate with the Company and the Principal Stockholder
in the removal of the Principal Stockholder as a party from the contract set forth on Section 7.22 of the Company Disclosure
Letter and the assignment to the Company all of the Principal Stockholder’s rights, title and interest in such contract.
Article
VIII
Conditions
8.1 Conditions
to Obligation of Each Party. The respective obligation of each Party to consummate the Merger is subject to the satisfaction
or waiver at or prior to the Effective Time of each of the following conditions:
(a) Written
Consent. The Company and Parent shall have received duly executed copies of the Written Consent.
(b) Regulatory
Approvals. (i) The waiting period (and any extension thereof) applicable to the consummation of the Transactions under any
Antitrust Laws shall have expired or been earlier terminated, (ii) Principal Stockholder has obtained a No Objection Certificate
from the Indian Tax Authority, (iii) the authorizations, consents, orders, approvals, filings and declarations listed in Section
8.1(b) of the Company Disclosure Letter shall have been filed, occurred or been obtained, (iii) the consent of the Reserve
Bank of India to the Transactions shall have been obtained (the “RBI Consent”) (all such authorizations,
consents, orders, approvals, filings and declarations and the lapse of all such waiting periods, including under Antitrust Laws,
being the “Requisite Regulatory Approvals”), and (iv) all such Requisite Regulatory Approvals shall be
in full force and effect.
(c) Laws
or Governmental Orders. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced
or entered any Law or Governmental Order (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins,
makes illegal or otherwise prohibits the consummation of the Transactions.
8.2 Conditions
to Obligation of Parent and Merger Sub. The respective obligation of Parent and Merger Sub to consummate the Merger is also
subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:
(a) Representations
and Warranties. (i) Each of the representations and warranties of the Company set forth in Section 5.2 [Capital
Structure of the Company] (except for any inaccuracies that would not reasonably be expected to result in additional cost,
expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $1,000,000)
and the first sentence of Section 5.6 [Absence of Certain Changes] and Section 5.22 [Title
to Assets] (solely with respect to any inaccuracies where the assets or rights involved are held by the Principal Stockholder
and have a value, individually or in the aggregate, that is more than $300,000) shall have been true and correct as of July 20,
2020 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); (ii) each of the representations and warranties of the Company set forth in Section
5.1 [Organization, Good Standing and Qualification] (only with respect to due organization of the Company and its
Subsidiaries), Sections 5.3(a), (b) and (d) [Corporate Authority; Approval and Fairness], Section 5.11
[Takeover Statutes] and Section 5.19 [Brokers and Finders] shall have been true and correct in all
material respects as of July 20, 2020 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 as of such particular date or period of time); and (iii) each other
representation and warranty of the Company set forth in this Agreement shall have been true and correct as of July 20, 2020 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 (iii), for any failure of any such representation and warranty
to be so true and correct (without giving effect to any qualification by materiality or Material Adverse Effect contained therein)
that would not, individually or in the aggregate, reasonably be expected to have 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. During the period from July 20, 2020 through the Closing Date, there shall not have been a Material
Adverse Effect with respect to the Company and its Subsidiaries that is ongoing as of the Closing.
(d) Contract
Termination. The Company shall provide evidence, in form and substance reasonably acceptable to Parent, of the termination
of the Contracts set forth on Section 8.2(d) of the Company Disclosure Letter.
(e) Company
Closing Certificate. Parent and Merger Sub shall have received 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 8.2(a), Section
8.2(b) and Section 8.2(c) have been satisfied.
8.3 Conditions
to Obligation of the Company. The obligation of the Company to consummate the Merger is also subject to the satisfaction or
waiver by the Company at or prior to the Effective Time of the following conditions:
(a) Representations
and Warranties. The representations and warranties of Parent set forth in this Agreement shall be true and correct in all material
respects as of July 20, 2020 and as of the Closing Date as though made on and as of such date and time (except to the extent that
any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall
be true and correct as of such earlier date), except for any failures of such representations and warranties to be so true and
correct that have not had, and would not reasonably be expected to have, an Effect that would prevent, materially delay or materially
impair the ability of Parent or Merger Sub to consummate the Transactions.
(b) Performance
of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub 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
and Merger Sub Closing Certificate. The Company shall have received a certificate signed on behalf of Parent and Merger Sub
by an officer of Parent certifying that the conditions set forth in Section 8.3(a) and Section 8.3(b)
have been satisfied.
Article
IX
Termination
9.1 Termination
by Mutual Written Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective
Time by mutual written consent of the Company and Parent by action of the Company Board and Parent.
9.2 Termination
by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the
Effective Time by action of either the Company Board or Parent, if:
(a) the
Merger shall not have been consummated by 5:00 p.m. EST on January 20, 2021 (the “Outside Date”);
(b) if
the Principal Stockholder fails to obtain the requisite votes for the Principal Stockholder Shareholder Approval pursuant to the
Principal Stockholder Postal Ballot; or
(c) any
Law or Governmental Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final
and non-appealable (a “Final Order”);
provided that
the right to terminate this Agreement pursuant to this Section 9.2 shall not be available to (i) any Party whose
action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted in the failure of
a condition to the consummation of the Merger nor (ii) in addition to the immediately preceding clause (i), to the Company in the
event the Principal Stockholder’s action or failure to fulfill any obligation under the Support Agreement has been the principal
cause of or resulted in the failure of a condition to the consummation of the Merger.
9.3 Termination
by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent and Merger Sub:
(a) prior
to the time the Written Consent is delivered, if (i) the Company Board shall have made a Change of Recommendation or (ii) the Company
shall have materially breached Section 7.2;
(b) if
at any time prior to the Effective Time, there has been a breach or failure to perform by the Company of any representation, warranty,
covenant or agreement set forth in this Agreement, or if any representation or warranty of the Company shall have been inaccurate
when made or shall have become inaccurate after July 20, 2020, in either case such that the conditions in Section 8.2(a)
or Section 8.2(b) would not be satisfied (and such breach, failure or inaccuracy 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 (30) days after the giving of
notice thereof by Parent to the Company and (ii) the Outside Date); provided that Parent may not terminate this Agreement
pursuant to this Section 9.3(b) if Parent or Merger Sub is then in material breach of any representation, warranty,
covenant or agreement contained in this Agreement such that any of the conditions set forth in Section 8.3(a) or
8.3(b) would not be satisfied;
(c) if
Principal Stockholder has obtained the requisite votes for the Principal Stockholder Shareholder Approval pursuant to the Principal
Stockholder Postal Ballot but the Written Consent has not been delivered to Parent by the Consent Delivery Deadline (provided,
that such termination right shall lapse automatically upon delivery to Parent of the Written Consent) or if, after delivery to
Parent, such Written Consent is rescinded, withdrawn or modified in any manner adverse to Parent, Merger Sub or the Merger; or
(d) if
(i) the Principal Stockholder has not completed the Principal Stockholder Postal Ballot by close of business (India Standard Time)
on September 11, 2020 or (ii) the Principal Stockholder has not made the voting results of the Principal Stockholder Postal Ballot
publicly available to its shareholders through the stock exchange in India as soon as practical and in no event later than twenty-four
(24) hours following the date (India Standard Time) of receipt by Principal Stockholder from the scrutinizer of the voting results
of the Principal Stockholder Postal Ballot; provided, that such termination right shall automatically lapse at the end of the first
(1st) Business Day following the date on which the Principal Stockholder Postal Ballot has been completed and the voting results
have been made available to the Principal Stockholder’s shareholders through the stock exchange in India.
9.4 Termination
by the Company. This Agreement may be terminated and the Merger may be abandoned by the Company:
(a) if
prior to the time the Written Consent is delivered, the Company Board authorizes the Company to enter into an Alternative Acquisition
Agreement in response to a Superior Proposal, to the extent the Company has complied in all material respects to the terms and
conditions set forth Section 7.2 with respect to such Superior Proposal, and the Company, prior to or concurrently
with such termination, pays to Parent in immediately available funds any fees required to be paid pursuant to Section 9.5;
(b) if
at any time prior to the Effective Time, there has been a breach or failure to perform by Parent or Merger Sub of any representation,
warranty, covenant or agreement set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub shall
have been inaccurate when made or shall have become inaccurate after July 20, 2020, in either case such that the conditions in
Section 8.3(a) or Section 8.3(b) would not be satisfied (and such breach, failure or inaccuracy to
be true and correct is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured before
the earlier of (i) thirty (30) days after the giving of notice thereof by the Company to Parent and (ii) the Outside Date), provided
that the Company Board may not terminate this Agreement pursuant to this Section 9.4(b) if (A) the Company is then
in material breach of any representation, warranty, covenant or agreement contained in this Agreement or (B) Principal Stockholder
is then in material breach of any representation, warranty, covenant or agreement set forth in the Support Agreement, in each case
such that any of the conditions set forth in Section 8.2(a) or 8.2(b) would not be satisfied; or
(c) (i)
if all the conditions set forth in Section 8.1 and Section 8.2 have been and continue to be satisfied
(other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are
reasonably capable of being satisfied at the Closing), (ii) Parent and Merger Sub have failed to consummate the Merger on the date
required pursuant to Section 2.2, (iii) after the occurrence of clauses (i) and (ii), the Company has irrevocably
notified Parent in writing that the conditions set forth in Section 8.1 and Section 8.2 have been and
continue to be satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided
that such conditions are reasonably capable of being satisfied at the Closing and the date of termination), the Company is ready,
willing and able to consummate the Merger and has given Parent written notice at least three (3) Business Days prior to such termination
stating the Company’s intention to terminate this Agreement pursuant to this Section 9.4(c) and the intended
termination date (which date shall be after the third Business Day after the date of such notice) if Parent and Merger Sub fail
to consummate the Merger, and (iv) Parent and Merger Sub fail to consummate the Merger on the later of the expiration of such three
(3) Business Day period and the date set forth in the foregoing notice.
9.5 Effect
of Termination and Abandonment.
(a) Any
proper termination of this Agreement pursuant to this Article IX shall be effective immediately upon the delivery
of written notice of such termination by the terminating Party to the other Party. Except to the extent provided in Section
9.5(b) and Section 9.5(c) below, in the event of termination of this Agreement and the abandonment of the
Merger pursuant to this Article IX, this Agreement shall become void and of no effect with no liability to any Person
on the part of any Party (or any of its Representatives or Affiliates) and all rights and obligations of any Party shall cease;
provided, however, and notwithstanding anything in the foregoing to the contrary, (i) no such termination shall relieve
any Party of any liability or damages to any other Party resulting from any Willful Breach of this Agreement prior to its termination
and (ii) the provisions set forth in Section 7.9, in Section 7.11, in this Section 9.5
and the provisions set forth, or referred to, in the second sentence of Section 10.1 and Section 10.2(a)
(as applicable to such provisions that survive termination as set forth herein) shall survive the termination of this Agreement.
(b) In
the event that this Agreement is validly terminated
(i) (A)
by either (1) the Company or Parent pursuant to Section 9.2(a) [Outside Date], if at the time of such termination
Parent would have been entitled to terminate this Agreement pursuant to Section 9.3(b) and the Parent Termination
Fee is not payable pursuant to Section 9.5(c)(ii) or (2) by Parent pursuant to Section 9.3(b) [Company
Breach], or Section 9.3(d) [Principal Stockholder Failure to Hold Principal Stockholder Postal Ballot],
(B) following the execution and delivery of this Agreement and prior to the termination of this agreement pursuant to Section
9.2(a), Section 9.3(b) or Section 9.3(d), a bona fide Acquisition Proposal has been
made to the Principal Stockholder, the Company or any of its Subsidiaries, and (C) within twelve (12) months after such termination,
the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to such Acquisition
Proposal (with “50%” being substituted in lieu of “20%” in each instance thereof in the definition of “Acquisition
Proposal” for purposes of this Section 9.5(b)(i)), then within one (1) Business Day of entering into or consummation
of such Alternative Acquisition Agreement, the Company shall pay the Company Termination Fee to Parent or its designee, in each
case by wire transfer of immediately available funds;
(ii) by
Parent pursuant to Section 9.3(a) [Company Change of Recommendation] or Section 9.3(c) [Failure
to Deliver Written Consent], then within one (1) Business Day of such termination the Company shall pay the Company Termination
Fee to Parent or its designee, in each case by wire transfer of immediately available cash funds;
(iii) by
the Company pursuant to Section 9.4(a) [Company Fiduciary Out for Superior Proposal], then concurrently with
such termination, the Company shall pay the Company Termination Fee to Parent or its designee, in each case by wire transfer of
immediately available cash funds; or
(iv) (A)
by Parent pursuant to Section 9.3(d) [Principal Stockholder Failure to Hold Principal Stockholder Postal Ballot]
and (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section
9.3(d), a bona fide Principal Stockholder Acquisition Proposal has been made to the Principal Stockholder or any
of its respective Subsidiaries (including the Company) and (C) within twelve (12) months after such termination, the Principal
Stockholder shall have entered into a definitive transaction agreement with respect to such Principal Stockholder Acquisition Proposal
(with “50%” being substituted in lieu of “20%” in each instance thereof for purposes of this Section
9.5(b)(iv)), then within one (1) Business Day entering into or consummation of such definitive transaction agreement in
connection with such Principal Stockholder Acquisition Proposal, the Company shall pay the Company Termination Fee to Parent or
its designee, in each case by wire transfer of immediately available funds.
In no event shall the
Company be required to pay the Company Termination Fee on more than one occasion.
(c) In
the event that this Agreement is validly terminated (i) by the Company pursuant to Section 9.4(b) [Parent or Merger
Sub Breach] or Section 9.4(c) [Parent or Merger Sub Failure to Close], or (ii) by the Company or Parent
pursuant to Section 9.2(a) [Outside Date], if, in the case of this clause (ii) at the time of termination
the Company would have been entitled to terminate this Agreement pursuant to Section 9.4(b) or Section 9.4(c),
then promptly, but in no event later than two (2) Business Days after the date of such termination, Parent shall pay the Parent
Termination Fee to the Company by wire transfer of immediately available cash funds. In no event shall Parent be required to pay
the Parent Termination Fee on more than one occasion.
(d) (i)
The Parties hereby acknowledge and agree that the agreements contained in this Section 9.5 are an integral part of
the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. Notwithstanding anything
in this Agreement to the contrary, the Parties hereby acknowledge and agree that (A) in the event that the Company Termination
Fee or the Parent Expenses becomes payable by, and is paid by, the Company pursuant to Section 9.5(b) or Section
9.6, as applicable, the Company Termination Fee or the Parent Expenses (in the event that the Company Termination Fee does
not become payable pursuant to Section 9.5(b)(i) or Section 9.5(b)(iv)), as applicable, shall be Parent’s
and Merger Sub’s sole and exclusive remedy for monetary damages of any kind, including consequential, special, indirect or
punitive damages, in any case pursuant to this Agreement, any agreement executed in connection herewith and the transaction contemplated
herby and thereby, the termination of this Agreement, the failure to consummate the Merger or any claims or actions under applicable
Law arising out of any breach, termination or failure and (B) in the event that the Parent Termination Fee becomes payable by,
and is paid by, Parent and accepted by the Company pursuant to Section 9.5(c), such fee shall be the Company’s
sole and exclusive remedy for monetary damages of any kind, including consequential, special, indirect or punitive damages pursuant
to this Agreement, any agreement executed in connection herewith and the transaction contemplated herby and thereby, the termination
of this Agreement, the failure to consummate the Merger or any claims or actions under applicable Law arising out of any breach,
termination or failure.
(ii) If
the Company fails to promptly pay the amounts due pursuant to Section 9.5(b) or Section 9.6, or Parent
fails to promptly pay the amount due pursuant to Section 9.5(c), and, in order to obtain such payment, the other
party commences a suit against the Party obligated to make such payment (the “Payor”) that results in
a judgment against the Payor, the Payor shall pay the other party its reasonable and documented out of pocket costs and expenses
(including attorneys’ fees) in connection with such suit, together with interest on the amount of such amount or portion
thereof at the U.S. prime rate as shown at the end of the trading day on Bloomberg screen BTMM or PRIME INDEX HP, whichever is
higher, on the date such payment was required to be made through the date of payment; provided, that such amounts shall not exceed
collectively $1,000,000.
(iii) Notwithstanding
anything herein to the contrary, the Company expressly acknowledges and agrees that: (i) in light of the difficulty of accurately
determining actual damages with respect to the foregoing, upon any such termination of this Agreement, the payment of the Parent
Termination Fee pursuant to Section 9.5(c), which constitutes a reasonable estimate of the monetary damages that
will be suffered by the Company by reason of breach or termination of this Agreement, shall be in full and complete satisfaction
of any and all monetary damages of the Company arising out of or related to this Agreement, the Merger or the other Transactions
(including any breach of this Agreement), the termination of this Agreement, the failure to consummate the Merger or the other
Transactions, and any claims or actions under applicable Law arising out of any such breach, termination or failure; and (ii) in
no event shall the Company be entitled to seek or obtain any recovery or judgment (including any consequential, special, indirect
or punitive damages) in excess of an amount equal to the Parent Termination Fee (plus, in the case the Parent Termination Fee is
not timely paid, the amounts described in Section 9.5(d)(ii)) against Parent, Merger Sub, its Subsidiaries, the Guarantors
or any of their respective former, current or future stockholders, directors, officers, employees, Affiliates, agents, other Representatives
or the Debt Financing Sources or any of their respective assets; provided, however, that this Section 9.5(d)(iii)
shall not limit the right of the Company to specific performance of this Agreement pursuant to Section 10.6 prior
to the termination of this Agreement in accordance with its terms.
(iv) Nothing
in this Section 9.5 shall limit or otherwise restrict the rights and remedies of the Company under Section
10.6.
9.6 Expenses.
If this Agreement is terminated by Parent pursuant to Section 9.3(b) [Company
Breach] or Section 9.3(d) [Principal Stockholder Failure to Hold
Principal Stockholder Postal Ballot], the Company shall pay to Parent (or its designee(s)) all reasonable and documented out-of-pocket
expenses (including all reasonable fees and expenses of counsel, accountants, investment banks, advisors and consultants to Parent,
Merger Sub, the Guarantors or their respective Affiliates, and all out-of-pocket fees and expenses of Debt Financing Sources for
which Parent, Merger Sub, the Guarantors or their Affiliates may be responsible) actually incurred by Parent, Merger Sub, the
Guarantors or their respective Affiliates in connection with this Agreement and the transactions contemplated hereby, which amount
shall not be greater than $2,000,000 (the “Parent Expenses”),
by wire transfer of immediately available funds within two (2) Business Days of such termination to an account designated by Parent;
provided, that any Parent Expenses paid by the Company to Parent pursuant to this Section 9.6 shall
be credited against, and shall thereby reduce, any Company Termination Fee that may be required to be paid by the Company to Parent
pursuant to Section 9.5(b)(i) and Section 9.5(b)(iv).
For the avoidance of doubt, in no event shall the Company be required to pay Parent the Parent Expenses on more than one occasion.
9.7 Payments;
Non-Recourse Parties.
(a) Notwithstanding
anything to the contrary in this Agreement, under no circumstances will the collective monetary damages payable by Parent, Merger
Sub, Guarantors or any of their Affiliates for breaches under this Agreement, the Limited Guaranty or the Equity Commitment Letter
exceed an amount equal to the sum of (i) the Parent Termination Fee and (ii) the amounts described in Section 9.5(d)(ii),
giving effect to the collective limitation set forth therein, for all such breaches (the “Parent Liability Limitation”).
In no event will any of the Company or any of its Affiliates 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 award in excess of the Parent Liability Limitation against (i) Parent, Merger Sub or Guarantor; or (ii) the former, current
and future holders of any equity, controlling persons, directors, officers, employees, agents, advisors, attorneys, Debt Financing
Sources, Affiliates (other than Parent, Merger Sub or Guarantor), members, managers, general or limited partners and assignees
of each of Parent, Merger Sub and Guarantor (the Persons in clauses (i) and (ii) collectively, the “Parent Related
Parties”), 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 the Parent Related Parties for, or with respect to, this Agreement, the Limited Guaranty, the Equity Commitment Letter
(subject to the terms and conditions set forth therein and in Section 10.6(b) of this Agreement to the extent applicable)
and other than obligations of Parent and Merger Sub to the extent expressly provided in this Agreement, in no event will any Parent
Related Party or any other Person other than Parent and Merger Sub have any liability for monetary damages to the Company or any
other Person relating to or arising out of this Agreement or the Merger.
(b) Notwithstanding
anything to the contrary in this Agreement, 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 to the Company Termination Fee for all such breaches
(the “Company Liability Limitation”). In no event will any of the Parent, Merger Sub or any of their
Affiliates 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 award in excess of the Company Liability
Limitation against (i) the Company; or (ii) the former, current and future holders of any equity, controlling persons, directors,
officers, employees, agents, advisors, attorneys, Affiliates (other than the Company), members, managers, general or limited partners
and assignees of the Company (the Persons in clauses (i) and (ii) collectively, the “Company Related Parties”),
and in no event will Parent, Merger Sub 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
Related Parties for, or with respect to this Agreement, and other than obligations of the Company to the extent expressly provided
in this Agreement, in no event will any Company Related Party or any other Person other than the Company have any liability for
monetary damages to Parent or Merger Sub or any other Person relating to or arising out of this Agreement or the Merger.
(c) This
Agreement may only be enforced against, and any claim, action, suit or other legal proceeding 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 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, other Representative, successor or permitted assign
of any of the foregoing (each, a “Non-Recourse Party”), shall have any liability for any obligations
or liabilities of any party hereto under this Agreement or for any claim or Proceeding (whether at law or equity, in contract,
in tort or otherwise) based on, in respect of or by reason of the Transactions or in respect of any written or oral representations
made or alleged to be made in connection herewith, except to the extent arising from fraud on the part of such Non-Recourse Party.
Without limiting the rights of the Company against Parent, in no event will the Company seek or obtain, nor will it permit any
of its Representatives to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or monetary
award against any Non-Recourse Party.
(d) Notwithstanding
anything to the contrary contained herein, the Company agrees on behalf of itself and its controlled Affiliates that this Agreement
may not be enforced against any Debt Financing Sources, and none of the Debt Financing Sources shall have any liability under this
Agreement or for any claim or Proceeding (whether at law or equity, in contract, in tort or otherwise) based on, in respect of
or by reason of the transactions contemplated hereby and thereby (including any breach by the Guarantor, Parent or Merger Sub),
the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Laws arising
out of any such breach, termination or failure. None of the Debt Financing Sources will have any liability to the Company or any
of the Company Related Parties relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at law or
equity, in contract, in tort or otherwise, and neither the Company nor any of the Company Related Parties will have any rights
or claims or make any claims against any of the Debt Financing Sources hereunder or thereunder. For the avoidance of doubt, no
Debt Financing Source shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature.
(e) Nothing
in the Section 9.7 shall limit or otherwise restrict the rights and remedies of the Company under Section 10.6,
other than as contemplated therein.
Article
X
Miscellaneous and General
10.1 Survival.
Article I, this Article X (provided that Section 10.6 shall survive only with
respect to those provisions of this Agreement that expressly survive termination pursuant to Section 9.5) and the
agreements of the Company, Parent and Merger Sub contained in Article IV, Section 7.10 [Employee
Benefits], Section 7.11 [Expenses] and Section 7.12 [Indemnification; Directors’
and Officers’ Insurance], the indemnification and reimbursement obligations of Parent pursuant to Section 7.13
[Financing and Financing Cooperation], the provisions that substantively define any related defined terms not substantively
defined in Article I and the Confidentiality Agreement and those other covenants and agreements contained herein
that by their terms apply, or that are to be performed in whole or in part, after the Effective Time, shall survive the Effective
Time. Article I, this Article X, the agreements of the Company, Parent and Merger Sub contained in
Section 7.11 [Expenses] and Section 9.5 [Effect of Termination and Abandonment], the
indemnification and reimbursement obligations of Parent pursuant to Section 7.13 [Financing and Financing Cooperation],
the provisions that substantively define any related defined terms not substantively defined in Article I and the
Confidentiality Agreement shall survive the termination of this Agreement. All other representations, warranties, covenants and
agreements in this Agreement or in any instrument or other document delivered pursuant to this Agreement shall not survive the
Effective Time or the termination of this Agreement.
10.2 Definitions.
For the purposes of this Agreement, except as otherwise expressly provided herein, the following terms have meanings set forth
in this Section 10.2:
(a) Defined
Terms
“Acquisition
Proposal” means (a) any proposal, offer, inquiry or indication of interest from a Person relating to a merger, joint
venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, spin-off, share
exchange, business combination or similar transaction involving the Company or any of its Subsidiaries pursuant to which the stockholders
of the Company immediately prior to the consummation of such transaction hold less than 80% of each class of outstanding voting
and equity interests of the resulting or surviving entity or (b) any acquisition, purchase or exclusive license by any Person or
group (as defined under Section 13 of the Exchange Act), resulting in, or any proposal, offer, inquiry or indication of interest
that if consummated would result in, any Person or group (as defined under Section 13 of the Exchange Act) becoming the beneficial
owner of, directly or indirectly, in one or a series of related transactions, more than 20% or more of the total voting power or
of any class of equity securities of the Company, or more than 20% of the consolidated net revenues, net income or total assets
(it being understood that the percentage of total assets shall be calculated by Fair Value and that total assets of the
Company, as applicable, include equity securities of Subsidiaries of the Company) of the Company. Notwithstanding the foregoing,
for purposes of Section 9.5(b)(i) only, the results described in clause (b) above shall exclude the beneficial ownership
of any Person obtained or that would be obtained solely as a result of such Person becoming the beneficial owner of securities
of Principal Stockholder.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control
with such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being
made (for purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled
by” and “under common control with”), as used with respect to any Person, means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting
securities, by Contract or otherwise).
“Antitrust
Law” means the Sherman Antitrust Act of 1890, the Clayton Act of 1914, the HSR Act and all other United States or
non-United States antitrust, competition or other Laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Business
Day” means any day ending at 11:59 p.m. EST other than a Saturday or Sunday or a day on which banks in the City of
New York or the State of California are required or authorized by Law to close. For purposes of Section 7.3, and
Section 9.3(d), “Business Day” shall mean any day ending at 11:59 p.m. IST other than a Saturday or Sunday
or a day on which banks in India are required or authorized by Law to close.
“COBRA”
means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law.
“Code”
means the Internal Revenue Code of 1986, as amended, and any rules or regulations promulgated thereunder.
“Company
Benefit Plan” means any benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement
or other obligation, whether or not in writing and whether or not funded, in each case, which is sponsored or maintained by, contributed
to or required to be contributed to by the Company or any of its Subsidiaries covering any employee or former employee of the Company
or any of its Subsidiaries, or the beneficiaries and dependents of any employee or former employee of the Company or its Subsidiaries,
or under or with respect to which the Company or any of its Subsidiaries has any current or potential liability or obligation (including
on account of a Company ERISA Affiliate) including, but not limited to, any “employee benefit plan” within the meaning
of Section 3(3) of ERISA, whether or not subject to ERISA, and any employment, consulting, retirement, pension, severance, termination
indemnity, separation, retention, salary continuation, vacation, sick leave, paid time off, termination, change in control, deferred
compensation, equity, equity-based, incentive, bonus, savings, supplemental retirement, profit sharing, insurance, medical, disability,
accident, housing assistance, welfare, fringe or other benefit plan program, policy, contract, agreement, arrangement or remuneration
of any kind, including, for the avoidance of doubt, each Non-U.S. Company Benefit Plan.
“Company
Employee” means any current or former employee, officer or director of the Company or any of its Subsidiaries.
“Company
ERISA Affiliate” means all Persons (whether or not incorporated) that, together with the Company or any of its Subsidiaries,
is or at any relevant time would be treated as a “single employer” within the meaning of Section 414 of the Code.
“Company
ESPP” means the Majesco Employee Stock Purchase Plan.
“Company
Option” means any option to purchase shares of Company Common Stock that is outstanding, unexpired and unexercised
immediately prior to the Effective Time.
“Company
RSU” means any restricted stock unit award with respect to Company Common Stock that is outstanding immediately prior
to the Effective Time.
“Company Termination Fee”
means an amount equal to $25,505,846.62
“Company
Warrant” means that certain Stock Purchase Warrant, dated as of September 1, 2015, by and between the Company and
Maxim Partners, LLC.
“Confidentiality
Agreement” means the Confidentiality Agreement, entered into between the Company and Thoma Bravo, LLC (n/k/a Thoma
Bravo, L.P.), dated June 12, 2020.
“Contract”
means any written or oral contract, agreement, lease, sublease, license, note, mortgage, bond, indenture, arrangement or other
obligation.
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions thereof or related or associate epidemics, pandemic or disease outbreaks.
“Credit Agreement”
means the Loan Agreement, dated as of March 23, 2016, by and between the Company and HSBC Bank USA, National Association, as amended,
restated, amended and restated, supplemented or otherwise modified on prior to the Closing Date.
“Data Protection
Legislation” means all applicable Laws concerning the collection, protection, storage, use, processing, transfer,
or disposition of Personal Information and data privacy in any applicable jurisdiction worldwide, including Directive 95/46/EC,
Regulation (EU) 2016/679 (the General Data Protection Regulation), the California Consumer Privacy Act of 2018 and the Privacy
and Electronic Communications (EC Directive) Regulations 2003 and any national implementing legislation, and any other legislation
which implements any other current or future legal act of the European Union concerning the protection and processing of Personal
Information.
“Debt Financing”
means the lending by Debt Financing Sources of amounts for the purposes of financing the Transactions.
“Debt Financing
Source” means each financial institution and other entity (including the lenders and each agent and arranger) that
commits to provide or otherwise enters into agreements to provide or arrange Debt Financing in connection with the Transactions,
together with each Affiliate thereof and each officer, director, employee, partner, controlling person, advisor, attorney, agent
and representative of each such entity or Affiliate and their respective successors and assigns.
“DTC”
means The Depository Trust Company.
“Effect”
means any effect, event, discovery, development, change, state of facts, condition, circumstance or occurrence.
“Environmental
Law” means any Law relating to: (a) the pollution or protection of the environment; or (b) public or worker health
or safety (as it relates to exposure to Hazardous Substances); or (c) the handling, use, storage, treatment, transportation, disposal,
release or threatened release of, or exposure of any Person to, any Hazardous Substance.
“Equity Financing
Source” means the entities set forth on the signature pages to the Equity Commitment Letter.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“Exchange
Act” means the Securities Exchange Act of 1934.
“Excluded
Shares” means (i) shares of Company Common Stock owned by Parent, Merger Sub or any other direct or indirect wholly
owned Subsidiary of Parent and shares of Company Common Stock owned by the Company or any direct or indirect wholly owned Subsidiary
of the Company, and in each case not held on behalf of third parties, and (ii) Dissenting Shares.
“Executive
Officers” mean those officers considered by the Company to be executive officers within the meaning of Rule 3b-7
under the Exchange Act.
“Fair Value”
means the amount at which the assets (both tangible and intangible), in their entirety, of the Surviving Corporation and its Subsidiaries
would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable
knowledge of the relevant facts, with neither being under any compulsion to act.
“FCPA”
means the United States Foreign Corrupt Practices Act of 1977.
“GAAP”
means United States generally accepted accounting principles.
“Government
Official” means any official, officer, employee, or representative of, or any Person acting in an official capacity
for or on behalf of, any Governmental Entity, and includes any official or employee of any entity directly or indirectly owned
or controlled by any Governmental Entity, and any officer or employee of a public international organization, as well as any Person
acting in an official capacity for or on behalf of any such Governmental Entity, or for or on behalf of any such public international
organization.
“Governmental
Entity” means any United States, non-United States, supranational or transnational governmental (including public
international organizations), quasi-governmental, regulatory or self-regulatory authority, agency, commission, body, department
or instrumentality or any court, tribunal or arbitrator (public or private) or other entity or subdivision thereof or other legislative,
executive or judicial entity or subdivision thereof, in each case, of competent jurisdiction.
“Governmental
Order” means any order, writ, judgment, temporary, preliminary or permanent injunction, decree, ruling, stipulation,
determination, or award entered by or with any Governmental Entity.
“Guarantors”
means the entities set forth on the signature pages to the Limited Guaranty under the heading Guarantors.
“Hazardous
Substance” means any substance, material or waste, that is listed, designated or classified as hazardous, radioactive
or toxic or a pollutant or a contaminant under, or for which liability or standards of conduct may be imposed pursuant to, any
applicable Environmental Law, including petroleum, asbestos, lead, silica, radiation, mold, noise and odor.
“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvement Act of 1976.
“Indebtedness”
means, with respect to any Person, without duplication, all obligations or undertakings by such Person (i) for borrowed money (including
any principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, commitment and other fees, sale or
liquidity participation amounts, reimbursements, indemnities and all other amounts payable in connection therewith and deposits
or advances of any kind to such Person); (ii) evidenced by bonds, debentures, notes or similar instruments; (iii) for capitalized
leases or to pay the deferred and unpaid purchase price of property or equipment arising in connection with earnouts or other contingent
payment obligations under Contracts (other than contingent indemnification obligations that have not matured and as to which no
claims have been made, or to the Knowledge of the Company, threatened); (iv) pursuant to securitization or factoring programs or
arrangements; (v) arising out of interest rate and currency swap arrangements, hedging arrangements, or any other arrangements
designed to provide protection against fluctuations in interest or currency rates; (vi) for letters of credit, bank guarantees,
and other similar Contracts or arrangements entered into by or on behalf of such Person (in each case whether or not drawn, contingent
or otherwise), (vii) with respect to vendor advances or any other advances; (viii) with respect of unpaid severance, incentive
bonuses (that have been accrued or should have been accrued in accordance with GAAP), (ix) with respect to accrued, but unpaid,
pension or similar retirement liability; (x) any unfunded or underfunded defined benefit or similar liabilities or obligations
(including, for the avoidance of doubt, statutory gratuity or similar obligations) or (xi) pursuant to guarantees and arrangements
having the economic effect of a guarantee of any Indebtedness of any other Person of the type contemplated by clauses (i) –
(x) above (other than between or among the Company and its wholly owned Subsidiaries).
“Indian Tax
Authority” means the Assessing Officer as defined under Section 2(7A) of the Income-tax Act, 1961 and any other income
tax authority authorized under the Income-tax Act, 1961.
“Intellectual
Property Rights” means all intellectual property and proprietary rights arising under the Laws of any jurisdiction
in the world, including: (i) trademarks, service marks, trade names, certification marks, collective marks, logos, slogans, and
trade dress, all applications and registrations for the foregoing; (ii) patents and patent applications, including divisionals,
continuations, continuations-in-part, extensions, re-issues, re-examinations, and foreign counterparts; (iii) a “Trade Secret”
as such term is defined in the Uniform Trade Secrets Act and other confidential or proprietary information and know-how (collectively,
“Trade Secrets”); (iv) registered and unregistered copyrights in published and unpublished works of authorship
(including Software and databases), and applications therefor, and all renewals, extensions, restorations and reversions thereof;
and (v) Internet domain names and URLs.
“Intervening
Event” means any material Effect that has materially improved or materially improves, or would be reasonably likely
to materially improve the business, financial condition, assets and liabilities or results of operations of the Company and its
Subsidiaries, taken as a whole that was not known to, or reasonably foreseeable by, the Company Board as of July 20, 2020, that
becomes known to the Company Board after execution of this Agreement and prior to the delivery of the Written Consent; provided,
that in no event shall any of the following constitute or be deemed to be an Intervening Event: (i) the receipt, existence or terms
of an Acquisition Proposal or any matter relating thereto, or (ii) changes in the stock price of the Company Common Stock or the
mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions
of revenue, earnings or other financial or operating metrics for any period ending on or after July 20, 2020, or changes after
July 20, 2020 in the credit rating of the Company (it being understood, however, that any underlying cause thereof may be taken
into account for purposes of determining whether an Intervening Event has occurred for any of the foregoing in this clause (ii)).
“IRS”
means the United States Internal Revenue Service.
“IT Assets”
means technology devices, computers, Software, servers, networks, workstations, routers, hubs, circuits, switches, data communications
lines, information technology systems and infrastructure, and all associated documentation.
“Knowledge”
when used in this Agreement (i) with respect to the Company or any of its Subsidiaries means the actual knowledge of the Persons
listed on Section 10.2(c) of the Company Disclosure Letter, in each case after reasonable inquiry of such individuals’
direct reports, and (ii) with respect to Parent means the actual knowledge of the Persons listed on Section 10.2(c) of the
Parent Disclosure Letter.
“Laws”
means any federal, state, local, foreign, international or transnational law, statute, ordinance, common law, constitution, rule,
regulation, standard, judgment, determination, Governmental Order, arbitration, award, treaty, code, agency requirement, authorization,
license or permit of any Governmental Entity.
“Leased Real
Property” means all leasehold or subleasehold estates and other rights to use and occupy any land, buildings, structures,
improvements, fixtures or other interest in real property held by the Company or any of its Subsidiaries.
“Leases”
means all leases, subleases, licenses, concessions and other agreements (written or oral) pursuant to which the Company or any
Subsidiary holds any Leased Real Property, including the right to all security deposits and other amounts and instruments deposited
by or on behalf of the Company or any Subsidiary thereunder.
“Licenses”
means permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions
and orders issued or granted by a Governmental Entity.
“Limited
Guaranty” means the limited guaranty, dated as of July 20, 2020, by the Guarantors, as amended by that certain Amendment
to Limited Guarantee, dated as of the date hereof, guaranteeing certain of Parent’s and Merger Sub’s obligations under
this Agreement as more particularly set forth therein.
“Material
Adverse Effect” means any Effect that, individually or in the aggregate with any other Effect (i) is, or would reasonably
be expected to be, materially adverse to the business, results of operations or financial condition of the Company and its Subsidiaries
taken as a whole or (ii) would reasonably be expected to prevent or materially impair or delay the consummation by the Company
of the Merger prior to the Outside Date; provided, however, that, with respect to clause (i) only, none of the following
Effects, alone or in combination, shall be deemed to constitute, or be taken into account in determining whether a Material Adverse
Effect has occurred or would reasonably be expected to occur:
(A) Effects
generally affecting the economy, credit, capital, securities, currency or financial markets or political, regulatory or business
conditions in any jurisdiction in which the Company or any of its Subsidiaries operates or in which any of the Company’s
or any of its Subsidiaries’ products or services are sold;
(B) Effects
that are the result of factors generally affecting the industries, markets or geographical areas in which the Company and its Subsidiaries
operate;
(C) any
changes in, the relationship of the Company or any of its Subsidiaries, contractual or otherwise, with customers, employees, suppliers,
distributors, Governmental Entities, financing sources, business partners or similar relationships that relates to the entry into,
announcement, pendency or performance of the Transactions, or resulting or arising from the identity of, or any facts or circumstances
relating to, or any actions taken or failed to be taken by, Parent or any of its Affiliates, including any Proceeding with respect
to this Agreement and the Transactions; provided, however, that the exceptions in this clause (C) shall not apply
with respect to references to Material Adverse Effect in the representations and warranties contained in Section 5.4(a)
[Governmental Filings; No Violations; Certain Contracts, Etc.] (and in Section 8.2(a) and Section 9.4(c)
to the extent related to such portions of such representation);
(D) changes
or modifications or proposed changes or modifications in GAAP or in any Law, including the repeal thereof, or in the authoritative
interpretation or enforcement thereof, in each case after July 20, 2020;
(E) any
failure by the Company to meet any internal or public projections or forecasts or estimates of revenues or earnings for any period;
provided that the exception in this clause (E) shall not prevent or otherwise affect a determination that any Effect underlying
such failure has resulted in, or contributed to, or would reasonably be expected to result in, or contribute to, a Material Adverse
Effect;
(F) any
Effect resulting from acts of war (whether or not declared), civil disobedience, hostilities, sabotage, terrorism, military actions
or the escalation of any of the foregoing, including cyberattacks, any hurricane, flood, tornado, earthquake, tsunami or other
weather or natural disaster, or any outbreak of illness or other public health event or any other force majeure event, or any national
or international calamity or crisis, whether or not caused by any Person;
(G) any
Transaction Litigation or other Proceeding arising from allegations of any breach of fiduciary duty or allegations of violation
of Law, in each case, relating to this Agreement or the Transactions;
(H) any
actions taken or failed to be taken by the Company or any of its Subsidiaries that are required to be taken by this Agreement or
any actions taken or failed to be taken with Parent’s written consent or at Parent’s written request (except for any
obligation hereunder to operate in the Ordinary Course or similar obligation);
(I) the
credit rating or other rating of financial strength of the Company or any of its Subsidiaries or any of their respective securities;
provided, that the exception in this clause (I) shall not prevent or otherwise affect a determination that any Effect underlying
such change, announcement of a change or potential change has resulted in, or contributed to, or would reasonably be expected to
result in, or contribute to, a Material Adverse Effect;
(J) the
market price or trading volume, of the shares of Company Common Stock or any other capital stock or debt securities of the Company;
provided that the exception in this clause (J) shall not prevent or otherwise affect a determination that any Effect underlying
such decline or change has resulted in, or contributed to, or would reasonably be expected to result in, or contribute to, a Material
Adverse Effect; or
(K) the
availability or cost of equity, debt or other financing to Parent or Merger Sub.
provided further
that, with respect to clauses (A), (B), (D) and (F), such Effect shall be taken into account in determining whether a “Material
Adverse Effect” has occurred if it disproportionately adversely affects the Company and its Subsidiaries compared to other
companies operating in the industries in which the Company and its Subsidiaries operate.
“Nasdaq”
means the Nasdaq, Inc.
“No Objection
Certificate” means a no-objection certificate issued by the Indian Tax Authority under section 281 of the Income
Tax Act, 1961 in relation to the alienation or divestment of the Principal Stockholder’s shareholding in the Company.
“Non-U.S.
Company Benefit Plan” means each Company Benefit Plan or other benefit or compensation plan, program, agreement,
or arrangement that is that is subject to the applicable Law of a jurisdiction other than the United States (whether or not United
States Law also applies) or maintained primarily for the benefit of Company Employees who reside or work primarily outside of the
United States.
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Open Source
Software” means any Software (i) licensed pursuant to any license approved by the Open Source Initiative and listed
at http://www.opensource.org/licenses, (ii) that is distributed as open source Software, or free Software under the Free Software
Definition (as promulgated by the Free Software Foundation), (iii) licensed pursuant to any “copyleft” license, (iv)
licensed pursuant to any Reciprocal License, or (v) licensed or distributed under licensing or distribution models similar to any
of the foregoing.
“Ordinary
Course” means, with respect to an action taken or not taken by any Person, that such action or inaction is consistent
with the ordinary course of business and past practices of such Person.
“Organizational
Documents” means (i) with respect to any Person that is a corporation, its articles or certificate of incorporation,
memorandum and articles of association, as applicable, and bylaws, or comparable documents, (ii) with respect to any Person that
is a partnership, its certificate of partnership and partnership agreement, or comparable documents, (iii) with respect to any
Person that is a limited liability company, its certificate of formation and limited liability company or operating agreement,
or comparable documents, (iv) with respect to any Person that is a trust or other entity, its declaration or agreement of trust
or other constituent document or comparable documents and (v) with respect to any other Person that is not an individual, its comparable
organizational documents and share registers or comparable documents.
“Parent Termination Fee”
means an amount equal to $51,011,693.24.
“Permitted
Encumbrances” means: (a) Encumbrances for current Taxes or other governmental charges not yet due and payable or
that the taxpayer is contesting in good faith through appropriate Proceedings and for which adequate reserves have been established
and maintained on the Company Reports in accordance with GAAP; (b) mechanics’, carriers’, workmen’s, repairmen’s
or other like Encumbrances arising or incurred in the Ordinary Course relating to obligations as to which there is no default on
the part of the Company or any of its Subsidiaries, or the validity or amount of which is being contested in good faith by appropriate
Proceedings; (c) other easements, covenants, conditions, restrictions and other similar matters of record affecting title to any
parcel of Leased Real Property that do not, individually or in the aggregate, materially impair the continued use, operation or
value of the specific parcel of Leased Real Property to which they relate or the conduct of the business of the Company and its
Subsidiaries as presently conducted; (d) non-exclusive licenses and other rights with respect to Intellectual Property Rights entered
into in the Ordinary Course; and (e) any other Encumbrance disclosed in the Company Disclosure Letter or for which adequate reserves
have been established and maintained on the Company Reports in accordance with GAAP.
“Person”
means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.
“Personal
Information” means any information that identifies or could be reasonably used to identify an individual, and any
other personal information or personal data that is subject to applicable Data Protection Legislation.
“Present
Fair Salable Value” means the amount that may be realized if the aggregate assets of the Surviving Corporation and
its Subsidiaries (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under
then-present conditions for the sale of comparable business enterprises.
“Principal
Stockholder” means Majesco Limited, a public limited company incorporated under applicable Laws in India and domiciled
in India.
“Principal
Stockholder Acquisition Proposal” means (a) any proposal, offer, inquiry or indication of interest from a Person
relating to a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization,
spin-off, share exchange, business combination or similar transaction involving the Principal Stockholder or any of its Subsidiaries
(other than the Company or its Subsidiaries) pursuant to which the stockholders of the Principal Stockholder immediately prior
to the consummation of such transaction hold less than 80% of each class of outstanding voting and equity interests of the resulting
or surviving entity or (b) any acquisition or purchase by any Person or group (as defined under Section 13 of the Exchange Act),
resulting in, or any proposal, offer, inquiry or indication of interest that if consummated would result in, any Person or group
(as defined under Section 13 of the Exchange Act) becoming the beneficial owner of, directly or indirectly, in one or a series
of related transactions, more than 20% or more of the total voting power or of any class of equity securities of the Principal
Stockholder.
“Principal
Stockholder Shareholder Approval” means approval for the Principal Stockholder Divestment by the shareholders of
the Principal Stockholder in accordance with applicable Laws.
“Proceeding”
means any action, cause of action, claim, charge, demand, litigation, suit, investigation, grievance, citation, summons, subpoena,
inquiry, audit, hearing, originating application to a tribunal, arbitration or other similar proceeding of any nature, civil, criminal,
regulatory, administrative or otherwise, whether in equity or at law, in contract, in tort or otherwise.
“Reciprocal
License” means a license of an item of Software that requires or that conditions any rights granted in such license
upon: (i) the disclosure, distribution or licensing of any other Software (other than such item of Software in its unmodified form);
(ii) a requirement that any disclosure, distribution or licensing of any other Software (other than such item of Software in its
unmodified form) be at no charge; (iii) a requirement that any other licensee of the Software be permitted to modify, make derivative
works of, or reverse-engineer any such other Software; (iv) a requirement that such other Software be redistributable by other
licensees; or (v) the grant of any patent rights (other than patent rights in such item of Software), including non-assertion or
patent license obligations (other than patent obligations relating to the use of such item of Software).
“Registered”
means issued by, registered with, renewed by or the subject of a pending application before any Governmental Entity.
“Representative”
means, with respect to any Person, any director, officer, principal, partner, manager, member (if such Person is a member-managed
limited liability company or similar entity), employee, consultant, investment banker, financial advisor, legal counsel, attorneys
in fact, accountant or other advisor, agent or other representative of such Person, in each case acting in their capacity as such.
“Sanctioned
Country” means a country or territory which is currently or has in the last five years been itself the subject of
or target of any Sanctions and Export Control Laws (for purposes of this Agreement, Crimea region of Ukraine, Cuba, Iran, North
Korea, Venezuela, Sudan and Syria).
“Sanctioned
Person” means a Person subject or target of sanctions or restrictions under Sanctions and Export Control Laws, including:
(i) any Person listed on any applicable U.S. or non-U.S. sanctions or export-related restricted party list, including OFAC’s
Specially Designated Nationals and Blocked Persons List or maintained by a Governmental Entity, (ii) located, organized or resident
in a Sanctioned Country, or (iii) greater than 50% owned or controlled by one or more Persons described in clauses (i) or (ii)
above.
“Sanctions
and Export Control Laws” means all U.S. and non-U.S. Laws relating to (i) economic or trade sanctions, including
the Laws administered or enforced by the United States (including by OFAC or the U.S. Department of State), the United Nations
Security Council, and the European Union; and (ii) export, reexport, transfer and import controls, including the Export Administration
Regulations, the International Traffic in Arms Regulations, the customs and import Laws administered by the U.S. Customs and Border
Protection, and the EU Dual Use Regulation.
“Sarbanes-Oxley
Act” means the Sarbanes-Oxley Act of 2002.
“SEC”
means the United States Securities and Exchange Commission or any successor thereto.
“Securities
Act” means the Securities Act of 1933, as amended.
“Software”
means any computer program, application, middleware, firmware, microcode and other software, including operating systems, software
implementations of algorithms, models and methodologies, in each case, whether in source code, object code or other form or format,
including libraries, subroutines and other components thereof, and all documentation relating thereto.
“Solvent”
means that, as of any date of determination, (a) the Present Fair Salable Value of the assets of the Surviving Corporation and
its Subsidiaries will, as of such date, exceed all of its liabilities, contingent or otherwise, as of such date, (b) the Fair Value
of the assets of the Surviving Corporation and its Subsidiaries will, as of such date, exceed its all of its liabilities, contingent
or otherwise, as of such date, (c) the Surviving Corporation and its Subsidiaries will not have, as of such date, an unreasonably
small amount of capital for the business in which it is engaged or is about to be engaged and (d) the Surviving Corporation and
its Subsidiaries will be able to pay their debts as they become absolute and mature, taking into account the timing of and amounts
of cash to be received by it and the timing of and amounts of cash to be payable on or in respect of its Indebtedness, in each
case after giving effect to the Transactions. For purposes of the definition of “Solvent”, (i) “debt” means
liability on a “claim” and (ii) “claim” means (A) any right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured
or (B) the right to an equitable remedy for a breach in performance if such breach gives rise to a right to payment, whether or
not such equitable remedy is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured.
“Stock Plan”
means the Majesco 2015 Equity Incentive Plan (as amended on August 13, 2018).
“Subsidiary”
means, with respect to any Person, any other Person of which (i) at least a majority of the securities or (ii) 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.
“Superior
Proposal” means a bona fide written Acquisition Proposal that would result in (a) a Person or group (as defined under
Section 13 of the Exchange Act), other than Parent or any of its Subsidiaries or controlled Affiliates, becoming the beneficial
owner of, directly or indirectly, more than 50% of the total voting power of the equity securities of the Company (or of the surviving
entity in a merger involving the Company, as applicable) or more than 50% of the consolidated net revenues, net income or total
assets (it being understood that the percentage of total assets shall be calculated by Fair Value and that total assets of the
Company include equity securities of Subsidiaries of the Company) of the Company that the Company Board has determined in good
faith after consultation with outside legal counsel and its financial advisor that is reasonably likely to be consummated in accordance
with its terms, taking into account all legal, regulatory and financial aspects of the proposal, the identity of the Person(s)
making the proposal, the sources of and terms of any financing, financing market conditions, and the timing of such consummation,
and if consummated, would result in a transaction more favorable to the Company’s stockholders (in their capacities as such)
from a financial point of view, than the Merger (after taking into account any revisions to the terms of this Agreement proposed
by Parent pursuant to Section 7.2(d)).
“Tax”
or “Taxes” means all federal, state, local and foreign income, profits, franchise, net income, gross
receipts, net worth, windfall, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment,
social security, disability, use, property, escheat, unclaimed property, transfer, registration, withholding, excise, production,
value added, goods and services, occupancy, alternative or add-on minimum and other taxes of any nature whatsoever imposed by any
Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts and any interest
in respect of such penalties and additions.
“Tax Return”
means all returns and reports (including any elections, declarations, disclosures, schedules, estimates, claims for refunds, property
tax rendition, information returns, or other filings) relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof, filed or supplied or required to be filed or supplied to a Taxing Authority.
“Taxing Authority”
means any Governmental Entity responsible for the determination, collection, assessment, enforcement or imposition of any Tax (domestic
or foreign).
“Trade Secrets”
has the meaning set forth in the definition of “Intellectual Property Rights.”
“Willful
Breach” means an intentional and willful material breach, or an intentional and willful material failure to perform,
in each case that is the consequence of an act or omission by a Party with the actual knowledge that the taking of such act or
failure to take such act would cause a breach of this Agreement.
TABLE OF DEFINED TERMS
|
Term
|
|
Section
|
|
Agreed Remedial Action
|
|
7.1(c)
|
|
Agreement
|
|
Preamble
|
|
Alternative Acquisition Agreement
|
|
7.2(c)(ii)
|
|
Anti-Corruption Laws
|
|
5.10(d)
|
|
Applicable Date
|
|
5.5(a)
|
|
Bankruptcy and Equity Exception
|
|
5.3(a)
|
|
Book-Entry Share
|
|
3.2
|
|
Bylaws
|
|
2.5
|
|
Capitalization Date
|
|
5.2(a)
|
|
CCC
|
|
Recitals
|
|
Certificate
|
|
3.2
|
|
Certificate of Merger
|
|
2.3
|
|
Change of Recommendation
|
|
7.2(c)(ii)
|
|
Charter
|
|
2.4
|
|
Closing
|
|
2.2
|
|
Closing Date
|
|
2.2
|
|
Company
|
|
Preamble
|
|
Company Board
|
|
Recitals
|
|
Company Common Stock
|
|
Recitals
|
|
Company Disclosure Letter
|
|
Article V
|
|
Company Equity Awards
|
|
3.5(d)
|
|
Company Equity Payments
|
|
3.5(d)
|
|
Company ESPP
|
|
3.5(c)
|
|
Term
|
|
Section
|
|
Company ESPP Offering Period
|
|
3.5(c)
|
|
Company Financial Advisor
|
|
5.3(b)
|
|
Company Intellectual Property
|
|
5.15(b)
|
|
Company Labor Agreement
|
|
5.9(b)
|
|
Company Options
|
|
3.5(a)
|
|
Company Recommendation
|
|
5.3(b)
|
|
Company Related Parties
|
|
9.7(b)
|
|
Company Reports
|
|
5.5(a)
|
|
Company Securities
|
|
5.2(b)
|
|
Consent Delivery Deadline
|
|
7.3
|
|
Consent Solicitation Statement
|
|
5.3(c)
|
|
Continuing Employee
|
|
7.10
|
|
D&O Insurance
|
|
7.12(b)
|
|
Data Requirements
|
|
5.15(i)
|
|
Dissenting Shares
|
|
4.7
|
|
Effective Time
|
|
2.3
|
|
Eligible Shares
|
|
3.1
|
|
Encumber
|
|
5.2(a)
|
|
Encumbrance
|
|
5.2(a)
|
|
Equity Commitment Letter
|
|
6.7(a)
|
|
Exchange Fund
|
|
4.1
|
|
Final Order
|
|
9.2(c)
|
|
Governmental Antitrust Entity
|
|
7.6(c)(i)
|
|
Indemnified Parties
|
|
7.12(a)
|
|
Insurance Policies
|
|
5.16
|
|
Letter of Transmittal
|
|
4.2(a)
|
|
Material Contract
|
|
5.17(a)(xvi)
|
|
Material Customers
|
|
5.20(a)
|
|
Material Suppliers
|
|
5.20(a)
|
|
Merger
|
|
Recitals
|
|
Merger Consideration
|
|
3.1
|
|
Merger Sub
|
|
Preamble
|
|
Money Laundering Laws
|
|
5.10(f)
|
|
New Plans
|
|
7.10(b)
|
|
Non-DTC Book-Entry Share
|
|
4.2(b)
|
|
Non-Recourse Party
|
|
9.7(b)
|
|
Opinion
|
|
5.3(b)
|
|
Outside Date
|
|
9.2(a)
|
|
Parent
|
|
Preamble
|
|
Parent Approvals
|
|
6.3(a)
|
|
Parent Board
|
|
Recitals
|
|
Parent Disclosure Letter
|
|
Article VI
|
|
Parent Expenses
|
|
9.6
|
|
Parent Liability Limitation
|
|
9.7(a)
|
|
Parent Match Period
|
|
7.2(d)
|
|
Term
|
|
Section
|
|
Parent Related Parties
|
|
9.7(a)
|
|
Party/Parties
|
|
Preamble
|
|
Paying Agent
|
|
4.1
|
|
Payoff Amount
|
|
7.13(d)(i)
|
|
Payor
|
|
9.5(d)(ii)
|
|
Principal Stockholder Divestment
|
|
Recitals
|
|
Principal Stockholder Postal Ballot
|
|
7.3
|
|
Product
|
|
5.18
|
|
Proposed Change Notice
|
|
7.2(d)
|
|
RBI Consent
|
|
8.1(b)
|
|
Requisite Regulatory Approvals
|
|
8.1(b)
|
|
SEC Clearance Date
|
|
7.4(a)
|
|
Support Agreement
|
|
Recitals
|
|
Surviving Corporation
|
|
2.1
|
|
Tail Period
|
|
7.12(b)
|
|
Takeover Statute
|
|
5.11
|
|
Trade Controls
|
|
5.10(e)
|
|
Transaction Litigation
|
|
7.16
|
|
Transactions
|
|
Recitals
|
|
UKBA
|
|
5.10(d)
|
|
WARN Act
|
|
5.9(c)
|
|
Written Consent
|
|
Recitals
|
(b) Interpretation
and Construction.
(i) 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.
(ii) The
Preamble, and all Recital, Article, Section, Subsection, Schedule and Exhibit references used in this Agreement are to the preamble,
recitals, articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified herein.
(iii) The
phrases “made available” and “make available” when used in this Agreement in reference to any information
made or to be made available to Parent or its Representatives shall be deemed to include any information uploaded and made available
to Parent and its Representatives prior to July 20, 2020 in the electronic data room hosted by the Company in connection with the
Transactions or otherwise transmitted to, or in the possession of, Parent or its Representatives.
(iv) Except
as otherwise expressly provided herein, for purposes of this Agreement: (A) the terms defined in the singular have a comparable
meaning when used in the plural and vice versa; (B) words importing the masculine gender shall include the feminine and
neutral genders and vice versa; (C) whenever the words “includes” or “including” are used, they
shall be deemed to be followed by the words “including without limitation”; (D) the word “or” is not exclusive;
(E) the words “hereto,” “hereof,” “hereby,” “herein,” “hereunder” and
similar terms in this Agreement shall refer to this Agreement as a whole and not any particular provision of this Agreement; and
(F) 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”.
(v) Except
as otherwise expressly provided herein, the term “dollars” and the symbol “$” mean United States Dollars.
(vi) Except
as otherwise expressly provided herein, when calculating the period of time within which, or following which, any act is to be
done or step taken pursuant to this Agreement, the date that is the reference day in calculating such period shall be excluded
and if the last day of the period is a non-Business Day, the period in question shall end on the next Business Day or if any action
must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day
that is a Business Day. References to a number of days shall refer to calendar days unless Business Days are specified.
(vii) Except
as otherwise expressly provided herein, all references in this Agreement to any statute include the rules and regulations promulgated
thereunder, in each case as amended, re-enacted, consolidated or replaced from time to time and in the case of any such amendment,
re-enactment, consolidation or replacement, reference herein to a particular provision shall be read as referring to such amended,
re-enacted, consolidated or replaced provision and shall also include, unless the context otherwise requires, all applicable guidelines,
bulletins or policies made in connection therewith.
(viii) The
Company Disclosure Letter may include items and information the disclosure of which is not required either in response to an express
disclosure requirement contained in a provision of this Agreement or as an exception to one or more representations or warranties
contained in Article V or to one or more covenants contained in this Agreement. Inclusion of any items or information
in the Company Disclosure Letter shall not be deemed to be an acknowledgement or agreement that any such item or information (or
any non-disclosed item or information of comparable or greater significance) is “material” or that, individually or
in the aggregate, has had or would reasonably be expected to have either a Material Adverse Effect or to affect the interpretation
of such term for purposes of this Agreement.
(ix) 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.
(x) The
measure of a period of one month or year for purposes of this Agreement will be the date of the following month or year corresponding
to the starting date; and, if no corresponding date exists, then the end date of such period being measured will be the next actual
date of the following month or year (for example, one month following February 18 is March 18 and one month following March 31
is May 1).
10.3 Modification
or Amendment; Waiver.
(a) Subject
to the provisions of applicable Law and the provisions of Section 7.12 [Indemnification; Directors’ and
Officers’ Insurance], at any time prior to the Effective Time, this Agreement may be amended, modified or waived if such
amendment, modification or waiver is in writing and signed, in the case of an amendment, modification or waiver, by Parent, Merger
Sub and the Company, or in the case of a waiver, by the Party against whom the waiver is to be effective; provided, however, that
after the Company and Parent’s receipt of the Written Consent, if any such amendment or waiver will by applicable Law or
in accordance with the rules and regulations of Nasdaq require further approval of the stockholders of the Company or Principal
Stockholder, the effectiveness of such amendment or waiver will be subject to the approval of the stockholders of the Company or
Principal Stockholder, as applicable. The conditions to each of the Parties’ respective obligations to consummate the Transactions
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; provided, however, that any such waiver shall only be effective if made in writing and executed by the Party
against whom the waiver is to be effective. Notwithstanding anything to the contrary contained herein, Sections 9.7(d),
10.3(a), 10.5, 10.6(b), 10.9, 10.10 and 10.13
(and any other provision of this Agreement solely to the extent an amendment, supplement, waiver or other modification of such
provision would materially amend the substance of such Sections 9.7(d), 10.3(a), 10.5,
10.6(b), 10.9, 10.10 and 10.13 as they apply to the Debt Financing Sources)
may not be amended, supplemented, waived or otherwise modified in a manner that is adverse to the Debt Financing Sources without
the prior written consent of the Debt Financing Sources.
(b) No
failure or delay by any Party in exercising any right, power or privilege hereunder or under applicable Law shall operate as a
waiver of such rights and, except as otherwise expressly provided herein, no single or partial exercise thereof shall 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 expressly provided otherwise
in Section 9.5(d).
10.4 Counterparts.
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. A signed copy of this Agreement delivered by email or other
means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
10.5 Governing
Law and Venue; Submission to Jurisdiction; Arbitration of Disputes.
(a) THIS
AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OR ANY OTHER JURISDICTION) TO THE
EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER TO ANOTHER JURISDICTION. Notwithstanding anything to the contrary contained in
this Agreement, all disputes against the Debt Financing Sources in any way relating to this Agreement or any of the Transactions,
including but not limited to any dispute arising out of or relating in any way to the Debt Financing or the performance thereof
or the Transactions, whether at law or equity, in contract, in tort or otherwise, will be governed by, and construed and enforced
in accordance with, the Laws of the State of New York applicable to contracts executed in and to be performed entirely within the
State, without regard to conflict of law principles that would result in the application of any Law other than the Law of the State
of New York.
(b) Except
as permitted under Section 10.6, any dispute arising out of or relating to this Agreement shall be exclusively and
finally settled by confidential arbitration in accordance with the rules of the American Arbitration Association. Unless otherwise
agreed in writing by the parties, the arbitral tribunal shall consist of three arbitrators and the seat of the arbitration shall
be in the State of California. All arbitration proceedings, including all written submissions and evidence provided, shall be confidential
and shall not be disclosed to any third party, except to the extent: (i) required by applicable law, (ii) required in connection
with any court application for interim relief or post-arbitration confirmation or enforcement proceedings, or (iii) all other parties
to the arbitration proceedings consent to the disclosure. The arbitration hearing shall be held within twelve months after the
filing of the arbitration demand with the AAA. The award shall be enforceable in any court of competent jurisdiction. The Parties
undertake to carry out any decision or award of the tribunal without delay.
(c) Notwithstanding
anything to the contrary in this Agreement, subject to Section 9.7(d), the Company, on behalf of itself and its controlled
Affiliates, and each of the other Parties hereto acknowledge and irrevocably agree (i) that any legal proceeding, whether in law
or in equity, in contract, in tort or otherwise, involving the Debt Financing Source arising out of, or relating to, the Merger,
the Debt Financing or the performance of services thereunder or related thereto will be subject to the exclusive jurisdiction of
any state or federal court sitting in the State of New York in the borough of Manhattan and any appellate court thereof, and each
such Party submits for itself and its property with respect to any such legal proceeding to the exclusive jurisdiction of such
court; (ii) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such legal proceeding
in any other court; (iii) that service of process, summons, notice or document by registered mail addressed to them at their respective
addresses provided in any applicable debt commitment letter will be effective service of process against them for any such legal
proceeding brought in any such court; (iv) to waive and hereby waive, to the fullest extent permitted by law, any objection which
any of them may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of,
any such legal proceeding in any such court; (v) to waive the right to a jury trial in connection with any such legal proceeding,
(vi) any such legal proceeding will be governed, construed and enforced in accordance with the laws of the State of New York; and
(vii) that a final judgment in any such legal proceeding shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by Law.
10.6 Specific
Performance.
(a) Each
of the Parties acknowledges and agrees that the rights of each Party to consummate the Transactions are special, unique and of
extraordinary character and that if for any reason any of the provisions of this Agreement are not performed in accordance with
their specific terms or are otherwise breached, immediate and irreparable harm or damage would be caused for which money damages
would not be an adequate remedy. Accordingly, each Party agrees that, subject to Section 9.5(d), Section 9.7
and this Section 10.6, in addition to any other available remedies a Party may have in equity or at law, each Party
shall be entitled to seek to enforce specifically the terms and provisions of this Agreement and seek to obtain an injunction restraining
any breach or violation or threatened breach or violation of the provisions of this Agreement in the courts of the State of California
without necessity of posting a bond or other form of security. Prior to the valid termination of this Agreement, in the event that
any Proceeding should be brought in equity to enforce the provisions of this Agreement, no Party shall allege, and each Party hereby
waives the defense, that there is an adequate remedy at law.
(b) Notwithstanding
anything to the contrary in this Agreement, it is acknowledged and agreed that Parent has an obligation hereunder to cause the
Financing to be funded, including by exercising its rights under the Equity Commitment Letter, and such obligation of Parent will
be subject to the requirements set forth in clause (A) below, and the right of the Company to specific performance in connection
with enforcing (x) such obligation of Parent and the Company’s third party beneficiary rights under the Equity Commitment
Letter will be subject to the requirements that (A) all of the conditions set forth in Section 8.1 and Section
8.2 have been and continue to be satisfied or waived (other than those conditions that by their terms are to be satisfied
at the Closing, each of which is capable of being satisfied at the time the Closing would have occurred but for the failure of
the Financing to be funded); (B) Parent and Merger Sub fail to consummate the Merger on the date required pursuant to Section
2.2; and (C) the Company has irrevocably confirmed in a written notice to Parent that if specific performance is granted
and the Financing is funded, then it would take such actions that are required of it by this Agreement to cause the Closing to
occur (and the Company has not revoked, withdrawn, modified or conditioned such irrevocable confirmation), and Parent and Merger
Sub fail to complete the Closing within three (3) Business Days after delivery of the Company’s irrevocable written confirmation.
Subject to Sections 9.5(d)(iii) and 9.7, the election to pursue an injunction, specific performance
or other equitable relief shall not restrict, impair or otherwise limit the Company from, in the alternative, seeking to terminate
the Agreement and collect the Parent Termination Fee pursuant to Section 9.5(c) or pursuing any other remedy available
at law or equity. Notwithstanding anything to the contrary contained in this Agreement, (i) the Company’s termination of
this Agreement and payment to the Company of the Parent Termination Fee shall terminate any right of the Company to injunctive
relief or specific performance and (ii) while the Company may pursue both a grant of specific performance as and only to the extent
permitted by this Section 10.6 and the payment of the Parent Termination Fee (only to the extent expressly permitted
by Section 9.5), under no circumstances shall the Company be permitted or entitled to receive both such grant of
specific performance to require Parent and Merger Sub to effect the Closing, on the on hand, and payment of the Parent Termination
Fee, on the other hand. Notwithstanding the foregoing, in no event shall the Company or any of its equityholders be entitled to
seek the remedy of specific performance of this Agreement directly against any Debt Financing Source, solely in their respective
capacities as lenders or arrangers in connection with the Debt Financing.
10.7 Notices.
All notices, requests, instructions, consents, claims, demands, waivers, approvals and other communications to be given or made
hereunder by one or more Parties to one or more of the other Parties shall be in writing and shall be deemed to have been duly
given or made upon actual receipt, if delivered personally; three (3) Business Days after deposit in the mail, if sent by registered
or certified mail; upon confirmation of successful transmission if sent by email; or two (2) Business Days after deposit with an
overnight courier, if sent by an overnight courier. Such communications shall be sent to the respective Parties at the following
street addresses or email addresses or at such other street address or email address for a Party as shall be specified for such
purpose in a notice given in accordance with this Section 10.7:
If to the Company:
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Majesco
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412 Mount Kemble Ave., Suite 110C
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Morristown, NJ 07960
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Attention:
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Lori Stanley, General Counsel
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Telephone:
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(973) 496-9018
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Email:
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lori.stanley@majesco.com
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with a copy to (which
shall not constitute notice):
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Sheppard, Mullin, Richter & Hampton LLP
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30 Rockefeller Plaza
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New York, NY 10112
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Attention:
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Valérie Demont and John Tishler
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Telephone:
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(212) 634-3040
(858) 720-8943
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Email:
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vdemont@sheppardmullin.com
jtishler@sheppardmullin.com
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If to Parent or Merger
Sub:
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c/o Thoma Bravo, L.P.
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600 Montgomery Street, 20th Floor
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San Francisco, CA 94111
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Attention:
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A.J. Rohde and Matt LoSardo
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Email:
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arohde@thomabravo.com and
mlosardo@thomabravo.com
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with a copy to (which
shall not constitute notice):
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Kirkland & Ellis LLP
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300 N. LaSalle Street
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Chicago, Illinois 60654
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Attention:
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Gerald T. Nowak, P.C., Theodore A. Peto, P.C. and
Aisha Lavinier
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Email:
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gerald.nowak@kirkland.com,
theodore.peto@kirkland.com, and
aisha.lavinier@kirkland.com
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10.8 Entire
Agreement.
(a) This
Agreement (including the Exhibits and Schedules), the Company Disclosure Letter, the Parent Disclosure Letter, the Limited Guaranty
the Equity Commitment Letter, the Support Agreements and the Confidentiality Agreement constitute the entire agreement among the
Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations, understandings
and, representations and warranties, whether oral or written, with respect to the subject matters hereof.
(b) In
the event of any inconsistency between the statements in the body of this Agreement, on the one hand, and the Exhibits, Schedules,
the Equity Commitment Letter, the Support Agreements, the Limited Guaranty, the Company Disclosure Letter or the Parent Disclosure
Letter (other than an exception expressly set forth in the Company Disclosure Letter or the Parent Disclosure Letter (as applicable)),
or the Confidentiality Agreement, on the other hand, the statements in the body of this Agreement shall control.
10.9 Third
Party Beneficiaries. Except (a) from and after the Effective Time, the Indemnified Parties with respect to (i) the provisions
of Section 7.12 [Indemnification; Directors’ and Officers’ Insurance], (ii) the right of holders
of Company Common Stock, Company Warrant and Company Equity Awards as of the Effective Time, after the Effective Time, to receive
the aggregate Merger Consideration payable pursuant to Article III of this Agreement, and (iii) the indemnification
and reimbursement obligations of Parent pursuant to Section 7.13 [Financing and Financing Cooperation], and
(b) that each Debt Financing Source shall be an express third party beneficiary with respect to Sections 9.7(d),
10.3(a), 10.5(a), 10.5(c), 10.6(b), 10.9, 10.10
and 10.13, and such provisions shall be enforceable by the Debt Financing Sources and their respective successors
and assigns solely in their respective capacities as lenders or arrangers in connection with the Debt Financing, the Parties hereby
agree that their respective representations, warranties and covenants set forth in this Agreement are solely for the benefit of
the other Parties on the terms and subject to the conditions set forth in this Agreement, and this Agreement is not intended to,
and does not, confer upon any Person other than the Parties and their respective successors, legal representatives and permitted
assigns any rights or remedies, express or implied, hereunder, including the right to rely upon the representations and warranties
set forth in this Agreement. The representations and warranties in this Agreement are the product of negotiations among the Parties.
In some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks
associated with particular matters regardless of the knowledge of any of the Parties. Consequently, Persons other than the Parties
may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as
of July 20, 2020 or as of any other date.
10.10 Non-Recourse.
Unless expressly agreed to otherwise by the Parties in writing, this Agreement may only be enforced against, and any Proceeding
in connection with, arising out of or otherwise resulting from this Agreement, any instrument or other document delivered pursuant
to this Agreement or the Transactions may only be brought against the Persons expressly named as Parties (or any of their respective
successors, legal representatives and permitted assigns) and then only with respect to the specific obligations set forth herein
with respect to such Party. No past, present or future director, employee (including any officer), incorporator, manager, member,
partner, stockholder, other equity holder or Persons in a similar capacity, controlling Person, Affiliate or other Representative
of any Party or of any Affiliate of any Party, or any of their respective successors, Representatives and permitted assigns (unless,
for the avoidance of doubt, such Person is a Party), shall have any liability or other obligation for any obligation of any Party
under this Agreement or for any Proceeding in connection with, arising out of or otherwise resulting from this Agreement, any instrument
or other document delivered pursuant to this Agreement or the Transactions; provided, however, that nothing in this
Section 10.10 shall limit any liability or other obligation of the Parties for breaches of the terms and conditions
of this Agreement.
10.11 Fulfillment
of Obligations. Whenever this Agreement requires an Affiliate of Parent to take any action, such requirement shall be deemed
to include an undertaking on the part of Parent to cause such Affiliate to take such action. Whenever this Agreement requires an
Affiliate 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 Affiliate to take such action and, after the Effective Time, on the part of the Surviving Corporation to cause such
Affiliate to take such action. Any obligation of one Party to any other Party under this Agreement, which obligation is performed,
satisfied or properly fulfilled by an Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by
such Party.
10.12 Severability.
Any provision of this Agreement shall be deemed severable and the illegality, invalidity or unenforceability of any provision shall
not affect the legality, validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement,
or the application of such provision to any Person or any circumstance, is illegal, invalid or unenforceable, (a) a suitable and
equitable provision to be negotiated by the Parties, each acting reasonably and in good faith shall be substituted therefor in
order to carry out, so far as may be legal, valid and enforceable, the original intent and purpose of such illegal, 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 illegality, invalidity or unenforceability, nor shall such illegality, invalidity or unenforceability
affect the legality, validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
10.13 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties (and any of their respective successors,
legal representatives and permitted assigns). Except as may be required to satisfy the obligations contemplated by Section
7.12 [Indemnification; Directors’ and Officers’ Insurance], no Party may assign any of its rights or
delegate any of its obligations under this Agreement, in whole or in part, by operation of Law or otherwise, without the prior
written consent of the other Parties, except as provided for in Section 10.11 [Fulfillment of Obligations],
and any attempted or purported assignment or delegation in violation of this Section 10.13 shall be null and void;
provided, however, that Parent may designate another wholly owned direct or indirect Subsidiary to be a constituent
corporation in the Merger in lieu of Merger Sub, so long as Parent provides the Company with advance written notice thereof, in
which event all references to Merger Sub in this Agreement shall be deemed references to such other wholly owned Subsidiary of
Parent, except that all representations and warranties made in this Agreement with respect to Merger Sub as of July 20, 2020 shall
be deemed representations and warranties made with respect to such other wholly owned Subsidiary as of the date of such designation;
provided, further that any such designation shall not reasonably be expected (in the Company’s reasonable determination)
to prevent or materially impede or materially delay the consummation of the Transactions or otherwise adversely affect the rights
of the stockholders of the Company under this Agreement; provided, further, that Parent or Merger Sub may transfer
or assign its rights and obligations under this Agreement, in whole or in part from time to time, to (a) one or more of its Affiliates
and/or any parties providing Debt Financing pursuant to the terms thereof (including for the purposes of creating a security interest
herein or otherwise assigning this Agreement as collateral in respect of such Debt Financing) at any time, and (b) after the Effective
Time, to any Person. Any purported assignment in violation of this Agreement is void.
[Signature Page Follows]
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date
first written above.
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MAJESCO
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By
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/s/ Adam
Elster
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Name:
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Adam Elster
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Title:
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Chief Executive Officer
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[Signature Page to Merger Agreement]
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MAGIC INTERMEDIATE, LLC
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By
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/s/ A.J.
Rohde
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Name:
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A.J. Rohde
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Title:
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President and Assistant Secretary
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MAGIC MERGER SUB, INC.
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By
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/s/ A.J.
Rohde
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Name:
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A.J. Rohde
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Title:
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President and Assistant Secretary
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[Signature Page to Merger Agreement]
Exhibit A
Form of Written Consent
Action by Written Consent of the
Stockholders
Pursuant to Section 603 of the California Corporations Code of the State of California
The undersigned
stockholder of Majesco, a California corporation (the “Company”), being the holder of a majority in voting power
of the issued and outstanding shares of common stock of the Company, par value $0.002 per share (the “Common Stock”),
of the Company, constituting the requisite vote of the stockholders of the Company, pursuant to Section 603 of the California Corporations
Code, as amended (“CCC”), and the Amended and Restated Articles of Incorporation and Amended and Restated Bylaws
of the Company, in each case, as amended through the date hereof, DOES HEREBY CONSENT to the adoption of, and DOES HEREBY ADOPT
the following resolutions in lieu of a meeting of the holders of Common Stock (the “Stockholders”) with the
same force and effect as if taken at a duly convened meeting of the Stockholders. This written consent may be executed in one or
more counterparts and shall become effective upon the execution of this Written Consent by the undersigned Stockholder. Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (defined below).
WHEREAS,
the board of directors of the Company (the “Board”) has (a) unanimously approved and declared advisable that
certain Amended and Restated Agreement and Plan of Merger (in the form attached hereto as Exhibit A, including the exhibits
and schedules thereto, the “Merger Agreement”), dated as of August 8, 2020, by and among Magic Intermediate,
LLC, a Delaware limited liability company (“Parent”), Magic Merger Sub, a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), and the Company, and the transactions contemplated thereby (including,
but not limited to the Merger, collectively, the “Transactions”), on the terms and subject to the conditions
set forth in the Merger Agreement, (b) determined that the Merger Agreement and the Transactions are fair to, and in the best interests
of the Stockholders, and (c) recommended that the Stockholders approve the Merger Agreement and the consummation by the Company
of the Transactions;
WHEREAS,
the Board (a) has submitted the Merger Agreement to a vote of the Stockholders, and (b) seeks this written consent of the Stockholders
(in lieu of a meeting of the Stockholders) to approve the Merger Agreement and the Transactions;
WHEREAS,
the Merger Agreement provides for the merger (the “Merger”) of Merger Sub with and into the Company, whereby
the separate corporate existence of the Merger Sub will cease and the Company will continue as the surviving corporation and as
a wholly-owned subsidiary of Parent;
WHEREAS,
the undersigned Stockholder is the holder of a majority in voting power of the Common Stock, constituting the requisite vote of
the Stockholders pursuant to the CCC;
WHEREAS,
the undersigned Stockholder has been afforded an opportunity to review the Merger Agreement and to ask questions of the Company
regarding the Merger Agreement and the Transactions;
WHEREAS,
the undersigned hereby acknowledges that the Merger Agreement provides that the Merger Agreement may be terminated and abandoned
at any time prior to the Effective Time (as defined therein), in the manner provided therein, including by the Company and Parent
in the manner provided in the Merger Agreement;
WHEREAS,
the undersigned Stockholder hereby acknowledges that this Written Consent is irrevocable; and
WHEREAS,
the undersigned Stockholder reaffirms that, pursuant to the terms of that certain Support Agreement, dated as of July 20, 2020,
as amended on August 8, 2020, by and among the Company, the undersigned Stockholder, Parent and Merger Sub, such Stockholder irrevocably
waived any dissenters’, appraisal and similar rights under the CCC or otherwise, in connection with the Merger Agreement
and the Transactions.
NOW, THEREFORE,
BE IT RESOLVED, that the undersigned Stockholder irrevocably and unconditionally hereby approves the Merger Agreement and the
Transactions, in accordance with Sections 152, 603 and 1201 and any other applicable provisions of the CCC; and
FURTHER,
RESOLVED, that any specific resolutions that may be required to have been adopted by the Stockholders in connection with the
consummation of the Transactions contemplated by the foregoing resolutions be, and the same hereby are, adopted, and that each
officer of the undersigned Stockholder be, and hereby is, authorized in the name and on behalf of the undersigned Stockholder to
certify as to the adoption of any and all such resolutions.
[Signatures
on the Following Page]
The undersigned, by executing
this written consent in the space provided below, does hereby consent to the adoption of, and does hereby adopt the foregoing resolutions.
This written consent shall be filed with the minutes of the proceedings of the Company.
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Dated: ________, 2020
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MAJESCO LIMITED
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Exhibit B
Form of Articles of Incorporation of the
Surviving Corporation
SECOND
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
MAJESCO
Article
I
The
name of the Corporation is Majesco.
Article
II
The
purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust corporation business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
Article
III
The
total number of shares of capital stock which the Corporation has authority to issue is One Thousand 1,000 shares of Common Stock,
with a par value of $0.01 per share.
Article
IV
The
liability of the directors of the Corporation for monetary damages shall be eliminated to the fullest extent permissible under
California law. Unless applicable law otherwise requires, any amendment, repeal or modification of this Article IV shall not adversely
affect any right of any director under this Article IV that existed at or prior to the time of such amendment, repeal or modification.
Article
V
To
the maximum extent permitted from time to time under the law of the State of California, 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 shareholders, other than those officers, directors or shareholders who are
employees of the Corporation. No amendment or repeal of this Article V shall apply to or have any effect on the liability or alleged
liability of any officer, director or shareholder of the Corporation for or with respect to any opportunities of which such officer,
director, or shareholder becomes aware prior to such amendment or repeal.
Article
VI
The
Corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code)
to the fullest extent permissible under California law through bylaw provisions, agreements with agents, vote of shareholders
or disinterested directors or otherwise and in excess of the indemnification otherwise permitted by Section 317 of the California
Corporations Code. Unless applicable law otherwise requires, any amendment, repeal or modification of any provision of this Article
VI shall not adversely affect any contract or other right to indemnification of an agent of the Corporation that existed at or
prior to the time of such amendment, repeal or modification.
The
Corporation shall have the power to purchase and maintain insurance on behalf of any agent (as defined in Section 317 of the General
Corporation Law) of the Corporation against any liability asserted against or incurred by the agent in that capacity or arising
out of the agent’s status as such to the fullest extent permissible under California law and whether or not the Corporation
would have the power to indemnify the agent under Section 317 of the General Corporation Law or these Articles of Incorporation.
For
the purposes of this Article VI, references to the “Corporation” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger and the corporation
which, if its separate existence had continued, would have had power and authority to (or in fact did) indemnify its directors,
officers or agents, so that any person who is or was a director, officer or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the
resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence
had continued.
Exhibit C
Form of Paying Agent Agreement
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT
(this “Agreement”) is entered into as of [●], by and among American Stock Transfer & Trust Company,
LLC (the “Paying Agent”), Magic Intermediate, LLC, a Delaware limited liability company (the “Parent”),
and Majesco, a California corporation (with CUSIP # _____________ and Tax ID # _________________) (the “Company”),
in connection with that certain Amended and Restated Agreement and Plan of Merger, dated as of August 8, 2020 (the “Merger
Agreement”), among Parent, Magic Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Sub”), and the Company, whereby Merger Sub will merge with an into the Company with the Company as the surviving corporation
(the “Merger”). Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to such
terms in the Merger Agreement.
Pursuant to the Merger
Agreement, at the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective
Time other than (i) shares of Company Common Stock owned by Parent, Merger Sub or any other direct or indirect wholly owned Subsidiary
of Parent and shares of Company Common Stock owned by the Company or any direct or indirect wholly owned Subsidiary of the Company,
and in each case not held on behalf of third parties, and (ii) shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time that are held by any holder who is entitled to demand and has properly demanded that the Company purchase
such shares for their fair market value in accordance with, and who complies in all respects with, Chapter 13 of the California
Corporations Code (each, a “Dissenting Share”) (the “Shares”), shall be converted into the
right to receive cash in the amount of $[●] per Share in cash (the “Merger Consideration”), subject to
any required withholding of Taxes, upon the terms and subject to the conditions set forth therein.
The Parent hereby appoints
the Paying Agent to act in accordance with the following provisions while performing its duties in connection with the Merger and
the payment of the Merger Consideration:
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1.
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The Paying Agent agrees to perform its duties hereunder in connection with the payment of the Merger
Consideration in accordance with the terms of this Agreement. The Paying Agent shall take such reasonable action as may from time
to time be requested by Parent.
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2.
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With respect to each certificate formerly representing any of the Shares (each, a “Certificate”),
as promptly as reasonably practicable after the Effective Time (and in any event within three (3) Business Days thereafter), the
Company shall cause the Paying Agent to provide or make available to each holder of record of each Certificate (i) notice advising
such holders of the effectiveness of the Merger, (ii) a letter of transmittal in customary form and reasonably approved by the
Company, which shall specify that delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon
delivery of the Certificate (or affidavit of loss in lieu of a Certificate) to the Paying Agent (the “Letter of Transmittal”),
and (iii) instructions for surrendering a Certificate (or affidavit of loss in lieu of a Certificate) to the Paying Agent (including
instructions with respect to the delivery to the Paying Agent of IRS Form W-9 or IRS Form W-8, as applicable).
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3.
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With respect to each book-entry account formerly representing any non-certificated Shares not held
through DTC (each, a “Non-DTC Book-Entry Share”), promptly after the Effective Time (and in any event within
three (3) Business Days thereafter), the Company shall cause the Paying Agent to provide or make available to each holder of record
of a Non-DTC Book-Entry Share (i) a notice advising such holders of the effectiveness of the Merger and (ii) a check in the amount
(after giving effect to any required Tax withholdings) of (A) the number of Non-DTC Book-Entry Shares held by such holder multiplied
by (B) the Merger Consideration, and the Non-DTC Book-Entry Shares so surrendered shall forthwith be cancelled.
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4.
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With respect to each book-entry account formerly representing any non-certificated Shares held
through DTC, Parent and the Company shall cooperate to establish procedures with the Paying Agent and DTC to ensure that the Paying
Agent will transmit to DTC or its nominees on the Closing Date (or if Closing occurs after 10:30 a.m. EST on the Closing Date,
on the first Business Day after the Closing Date), upon surrender of Shares held of record by DTC or its nominees in accordance
with DTC’s customary surrender procedures, the Merger Consideration for each such Share that each such holder has the right
to receive pursuant to the Merger Agreement.
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5.
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Parent will deliver or cause to be delivered to the Paying Agent a complete and correct list of
holders of Dissenting Shares, if any, along with instructions as to the disposition of such Dissenting Shares held by such holders
should they be presented to the Paying Agent for exchange. Parent is aware that holders of Dissenting Shares held in “street
name” should be instructed to work through their broker to obtain a Certificate or to have their Dissenting Shares issued
into a direct registration book-entry position with DTC prior to the Effective Time so that they may be readily segregated from
the Shares.¶ At the request of Parent or the Company, the Paying Agent will supply copies of the Letter of Transmittal, return
envelopes and/or other documents reasonably requested by Parent or the Company to be enclosed in any mailings made by the Company
to any holders of Dissenting Shares.
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6.
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The Paying Agent shall examine the Letters of Transmittal, Certificates and other documents delivered
or mailed to it by or for the holders thereof to ascertain whether: (i) the Letters of Transmittal and any other documents submitted
to the Paying Agent are properly executed and have otherwise been surrendered in accordance with the instructions set forth therein;
and (ii) the Shares have otherwise been surrendered in accordance with the instructions provided. In each case where a Letter of
Transmittal or other document has been improperly executed or completed or, for any other reason, is not in proper form, or some
other irregularity exists, the Paying Agent shall endeavor to take such action as it considers best suited to notify the surrendering
shareholder thereof and as to the appropriate means of resolving the same. Determination of all questions as to the proper completion
or execution of Letters of Transmittal and any other documents submitted to the Paying Agent as to the proper form for transfer
of the Certificates or as to any other irregularity in connection with the acceptance of the Merger Consideration shall be made
by the Paying Agent in consultation with, and with the prior consent of, officers or counsel for the Parent, and any determination
made by the Parent, who shall have ultimate authority, shall be final and binding.
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7.
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Surrenders of Shares may be made only as set forth in the Letters of Transmittal. Letters of Transmittal,
shall be noted by the Paying Agent as to the date and time of receipt and shall be preserved and retained by the Paying Agent as
permanent records. Upon surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu of a Certificate) together
with a duly executed and completed Letter of Transmittal and such other documents as may reasonably be required pursuant to such
instructions, the Company shall cause the Paying Agent to promptly (and in any event, within three (3) Business Days thereafter)
provide or make available to each holder of record of any such Certificate in exchange therefore a check in the amount (after giving
effect to any required Tax withholdings) of (A) the number of Shares represented by such Certificate (or affidavit of loss in lieu
of a Certificate) multiplied by (B) the Merger Consideration, and the Certificate so surrendered shall forthwith be cancelled.
No holder of Book-Entry Shares will be required to provide a Certificate or an executed Letter of Transmittal to the Paying Agent
in order to receive the payment that such holder is entitled to receive pursuant to the Merger Agreement in respect of such holder’s
Book-Entry Shares.
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8.
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In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person
of a bond in customary amount and upon such terms as may be required as indemnity against any claim that may be made against it
with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate, the Merger
Consideration payable pursuant to the Merger Agreement had such lost, stolen or destroyed Certificate been surrendered.
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9.
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The Paying Agent shall comply with, and shall arrange to comply with, all requirements under the
tax laws of the United States, including those relating to missing tax identification numbers, and shall file any appropriate reports
with the Internal Revenue Service (“IRS”) (e.g., 1099, 1099-B, etc.) The Paying Agent may be required to deduct
and withhold backup withholding tax from cash paid to holders who have not supplied their correct taxpayer identification number
or required certification. Such funds shall be turned over to the IRS by the Paying Agent.
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10.
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The Paying Agent shall keep and maintain complete and accurate ledgers showing all Shares exchanged
by it and payments made by it and provide copies of such ledgers upon the reasonable request of Parent. The Paying Agent is authorized
to cooperate with and furnish information to any organization or its legal representatives designated from time to time by the
Parent in any manner reasonably requested by any of them in connection with the Merger and share exchange pursuant thereto.
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11.
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All Certificates surrendered to the Paying Agent shall be retained by it as required by the regulations
of the Securities and Exchange Commission of the United States.
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12.
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At or prior to the Closing, the Parent will deposit or cause to be deposited, with the Paying Agent
in an account for the benefit of the surrendering holders of Shares, at JP Morgan Chase, 55 Water Street, New York, NY, ABA # ,
Acct# (and referencing name of the Company), federal or other immediately available funds in an amount equal to the number of Shares
multiplied by the Merger Consideration (the “Exchange Fund”) payable upon surrender of the Shares. The
Paying Agent will draw upon the funds in the Exchange Fund, at or following the Closing, as required to make payments for the Shares
and any applicable tax withholding payments. The Exchange Fund, once deposited with the Paying Agent, shall, until such disbursement
to the holders of Shares, be held in trust for the benefit of holders of Shares converted into the right to receive the Merger
Consideration and shall not be used for any other purpose. The Paying Agent will not be obligated to calculate or pay interest
to any holder or party and no interest shall be paid or accrue on any cash payable upon the surrender of any Certificate or the
conversion of any Book-Entry Shares.
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13.
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Upon request, the Paying Agent shall provide to the Parent the information on the number of the
Shares which have been properly surrendered and such other information as Parent may reasonably request.
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14.
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After the six (6) month anniversary of the Closing Date, for the purposes of facilitating the surrender
of the Shares, and/or the payment of the Merger Consideration, the Paying Agent may select and use the services of a shareholder
locating service provider (the “Provider”), to locate and contact (i) holders who have not surrendered their
Shares, including lost Certificates, and (ii) former holders of Shares who may not have yet cashed their checks representing the
Merger Consideration. The Provider may compensate the Paying Agent for processing and other services. The Provider shall inform
any located shareholders that they may choose either to contact the Paying Agent directly to receive the Merger Consideration at
no charge other than any applicable fees, or to utilize the services of the Provider for a fee, which may not exceed the lesser
of twenty percent (20%) of the total value of the Merger Consideration or the maximum fee allowed pursuant to any applicable state
statute. These locating services shall be done at no cost to the Parent. Should the Parent elect to utilize a provider other than
the one selected by the Paying Agent, additional fees may apply.
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15.
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The Paying Agent shall identify, report and deliver all unclaimed Shares and related unclaimed
property to all states and jurisdictions for the Company in accordance with applicable abandoned property law. The Paying Agent
shall not charge the Parent for services relating to the escheatment of property (with the exception of reasonable, documented
and customary out- of-pocket expenses), as the Paying Agent will receive compensation from agents for the states for processing
and support services it provides relating to the initial compliance with applicable abandoned property law.
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16.
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Any portion of the Exchange Fund (including the proceeds of any deposit of the Exchange Fund) that
remains unclaimed by the holders of the Shares one year after the Effective Time shall be delivered by the Paying Agent to Parent.
Any holder of Shares who has not theretofore surrendered or transferred their Certificates for exchange pursuant to the Merger
Agreement shall thereafter look only to Parent or the Surviving Corporation for delivery of the Merger Consideration that such
holder has the right to receive pursuant to the Merger Agreement. Notwithstanding anything to the contrary in 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 the
Company’s capital stock for any amount properly delivered to a public official pursuant to applicable abandoned property,
escheat or similar Laws. Any Merger Consideration remaining unclaimed by the holders of Certificates or Book-Entry Shares immediately
prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity will, to the extent
permitted by applicable Law, become the property of the Surviving Corporation or an Affiliate thereof designated by the Surviving
Corporation, free and clear of any claim or interest of any Person previously entitled thereto.
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(a)
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shall have no duties or obligations other than those specifically set forth herein or as otherwise
agreed in writing between the Paying Agent and Parent;
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(b)
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shall be regarded as making no representations and having no responsibilities as to the validity,
sufficiency, value or genuineness of the Certificates surrendered to the Paying Agent, properly deposited with it hereunder in
accordance with the terms and provisions hereof and reasonably believed in good faith to be valid and genuine, and shall not be
required to and shall make no representation as to the validity, value or genuineness of the Merger;
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(c)
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may rely on and shall be protected in acting in reliance upon any certificate, instrument, opinion,
notice, letter or other document or security delivered to the Paying Agent and reasonably believed by it to be genuine and to have
been signed by the proper party or parties;
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(d)
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may rely on, and shall be protected in acting upon, written instructions given by any officer of,
or any party authorized in writing by, the Parent with respect to any matter relating to the Paying Agent’s actions;
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(e)
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may employ or retain, at its sole cost and expense, such reputable agents (including but not limited
to, vendors, advisors and subcontractors) as it reasonably requires to perform its duties and obligations hereunder; may pay reasonable
remuneration for all services so performed by such agents; shall not be responsible for any misconduct on the part of such agents
(except as a result of the Paying Agent’s fraud, gross negligence, bad faith or willful misconduct); and in the case of reputable
legal counsel, may rely on the written advice or opinion of such counsel, which shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by the Paying Agent hereunder in good faith and in accordance with such advice
or opinion; and
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(f)
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shall have in place appropriate and reasonable security measures, consistent with the type of data
being processed and the services being provided by the Paying Agent, to protect such data, which measures shall implement best
industry protections and include physical, electronic and procedural safeguards to protect such data against any data security
breach, to protect the security of personal data and prevent a data security breach, including, without limitation, a breach resulting
from or arising out of the Paying Agent’s internal use, processing or other transmission of data.
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18.
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The Parent agrees to pay the Paying Agent for services rendered hereunder, as set forth in the
schedule attached to this Agreement.
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19.
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The Parent and the Company hereby jointly covenant and agree to indemnify, reimburse and hold the
Paying Agent and its officers, directors, employees and agents (each, a “Paying Agent Indemnified Person”) harmless
against any loss, liability or reasonable, documented and out-of-pocket expense (including reasonable and documented legal and
other fees and expenses) incurred by a Paying Agent Indemnified Person arising out of or in connection with entering into this
Agreement or the performance of its duties hereunder in each case resulting from any third party claims, except for such losses,
liabilities or expenses incurred as a result of its gross negligence, bad faith, fraud or willful misconduct. Neither the Parent
nor the Company shall be liable under this indemnity with respect to any claim against a Paying Agent Indemnified Person unless
the Parent and the Company are notified of the written assertion of a claim against it, or of any action commenced against a Paying
Agent Indemnified Person, promptly after such Paying Agent Indemnified Person shall have received any such written information
as to the nature and basis of the claim; provided, however, that failure by the Paying Agent to provide such notice shall not relieve
the Parent or the Company of any liability hereunder if no prejudice occurs. If any Paying Agent Indemnified Person is entitled
to indemnification hereunder with respect to any action or proceeding brought by a third party, Parent shall be entitled to assume
the defense of any such action or proceeding. Upon assumption by Parent of the defense of any such action or proceeding, such Paying
Agent Indemnified Person shall have the right to participate in such action or proceeding and to retain its own counsel but Parent
shall not be liable for any legal expenses of other counsel subsequently incurred by such Paying Agent Indemnified Person in connection
with the defense thereof, unless Parent has agreed in writing to pay such fees and expenses. The Paying Agent hereby covenants
and agrees to indemnify, reimburse and hold Parent, Merger Sub, the Company, the Surviving Corporation and their respective officers,
directors, employees and agents (each, a “Parent Indemnified Person”) harmless against any loss, liability or
reasonable, documented and out-of-pocket expense (including legal and other fees and expenses) incurred by a Parent Indemnified
Person arising out of or in connection with the fraud, gross negligence, bad faith or willful misconduct of a Paying Agent Indemnified
Person. None of Parent, Merger Sub, the Company or the Surviving Corporation shall be liable under this indemnity for any settlement
made without its prior written consent.
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Except with respect to indemnification
obligations in respect of third-party claims, no party hereto shall have any liability for any incidental, special, statutory,
indirect or consequential damages, or for any loss of profits, revenue, data or cost of cover.
All provisions regarding indemnification,
liability and limits thereon shall survive the resignation or removal of the Paying Agent or the termination of this Agreement.
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20.
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Any notice or communication by the Paying Agent or the Parent to the other is duly given if in
writing and delivered in person or via first class mail (postage prepaid) or overnight air courier to the other’s address.
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If to the Parent:
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c/o Thoma Bravo, L.P.
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600 Montgomery Street, 20th Floor
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San Francisco, CA 94111
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Attention:
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A.J. Rohde and Matt LoSardo
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Email:
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arohde@thomabravo.com and
mlosardo@thomabravo.com
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with copy (which shall
not constitute notice) to:
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Kirkland & Ellis LLP
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300 N. LaSalle Street
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Chicago, Illinois 60654
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Attention:
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Gerald T. Nowak, P.C., Theodore A. Peto, P.C. and Aisha Lavinier
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Email:
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gerald.nowak@kirkland.com, theodore.peto@kirkland.com, and aisha.lavinier@kirkland.com
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If to the Company:
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Majesco
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412 Mount Kemble Ave., Suite 110C
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Morristown, NJ 07960
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Attention:
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Lori Stanley
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Email:
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lori.stanley@majesco.com
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with copy to:
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Sheppard, Mullin, Richter & Hampton LLP
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30 Rockefeller Plaza
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New York, NY 10112
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Attention:
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Valérie Demont and John Tishler
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Telephone:
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(212) 634-3040
(858) 720-8943
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Email:
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vdemont@sheppardmullin.com
jtishler@sheppardmullin.com
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If to the Paying Agent:
American Stock Transfer
& Trust Company, LLC
6201 15th Avenue
Brooklyn, New York 11219
Attn: Corporate
Actions
Tel: (718)
921.8200
with copy
to:
American
Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, New York 11219
Attn: General
Counsel
Tel: (718) 921.8200
The Paying Agent and the Parent
may, by notice to the other, designate additional or different addresses for subsequent notices or communications.
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21.
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If any provision of this Agreement shall be held illegal, invalid, or unenforceable by any court,
this Agreement shall be construed and enforced as if such provision had not been contained herein and shall be deemed an agreement
between us to the full extent permitted by applicable law.
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22.
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This Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without giving effect to principles of conflicts of law, and shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto.
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23.
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Neither this Agreement, nor any rights or obligations hereunder, may be assigned by any party without
the written consent of the other parties hereto. However, (i) the Paying Agent may assign this Agreement or any rights granted
hereunder, in whole or in part, either to affiliates, another division, subsidiaries or in connection with its reorganization or
to successors of all or a majority of the Paying Agent’s assets or business without the prior written consent of the Parent,
provided that such Person expressly assumes in writing all of the Paying Agent’s obligations hereunder and (ii) the Parent
may assign this Agreement or any rights granted hereunder, in whole or in part, to any Person who succeeds to the rights and obligations
of Parent under the Merger Agreement without the prior written consent of the Paying Agent, provided that the Paying Agent has
provided the Parent and the Company written notice of such assignment.
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24.
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No provision of this Agreement may be amended, modified or waived, except in writing signed by
all of the parties hereto.
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25.
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Nothing herein contained shall amend, replace or supersede any agreement between the Company and
the Paying Agent to act as the Company’s transfer agent, which agreement shall remain of full force and effect.
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26.
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Either the Parent or Paying Agent may terminate this Agreement upon 30 days prior written notice
to the other parties, and upon the effective date of such termination, the Paying Agent shall immediately deliver to the Parent,
or to such successor agent or other Person as may be designated in writing by the Parent, any portion of the Exchange Fund that
remains unclaimed at that time. Unless so terminated, this Agreement shall continue in effect until all Shares have been received
and paid for, or until the final delivery of all consideration(s) to the shareholder(s) or to the appropriate states as unclaimed
property. In the event of such termination, the Parent will appoint a successor paying agent and inform the Paying Agent of the
name and address of any successor paying agent so appointed, provided that no failure by the Parent to appoint a successor paying
agent shall effect the termination of this Agreement or the discharge of Paying Agent as paying agent hereunder. Upon any such
termination, Paying Agent shall be relieved and discharged of any further responsibilities with respect to its duties hereunder.
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27.
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The Paying Agent acknowledges that it will acquire information and data from the Company, and all
such information and data are confidential and proprietary information of the Company (collectively, “Confidential Information”).
Confidential Information may include, but shall not be limited to, information related to the Company’s clients, business
plans, ownership structure, business processes, and other related data, all in any form whether electronic or otherwise, that the
Paying Agent acquires in connection with this Agreement. Confidential Information will not include, however, any information that
(i) was in the possession of the Paying Agent at the commencement of the services contemplated under this Agreement, (ii) became
part of the public domain through no fault of the Paying Agent or (iii) became rightfully known to the Paying Agent or its affiliates
through a third party with no obligation of confidentiality to the Company, or (iv) is independently developed by the Paying Agent.
The Paying Agent agrees not to disclose the Confidential Information to others (except as required by law) or use it in any way,
commercially or otherwise, except in performing services hereunder, and shall not allow any unauthorized person access to the Confidential
Information. The Paying Agent further agrees to exercise at least the same degree of care as it uses with regard to its own confidential
information, but in no event less than reasonable degree of care, in protecting the Confidential Information. In the event that
the Paying Agent or any of its representatives are requested or required by law, regulatory authority or other applicable judicial
or governmental order to disclose any Confidential Information, the Paying Agent will provide the Parent and the Company with prompt
written notice of any such request or requirement so that the Parent or the Company may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not
obtained, or that the Parent or the Company waives compliance with the terms hereof, the Paying Agent may disclose only that portion
of the Confidential Information which is legally required and the Paying Agent will use its reasonable best efforts to obtain reliable
assurance that confidential treatment will be accorded to such Confidential Information.
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28.
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This Agreement may be executed in any number of counterparts, each of which when so executed shall
be deemed an original, but all such counterparts shall constitute one and the same instrument. The parties agree that this Agreement
may be signed electronically and such electronic signature shall be treated in all respects as having the same effect as an original
signature.
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[signature page follows]
This Paying Agent Agreement
has been executed by the parties hereto as of the date first written above.
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Magic INTERMEDIATE, LLC
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By:
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Name:
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A.J. Rohde
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Title:
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President and Assistant Secretary
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[Signature Page Parent Paying Agent Agreement]
[Signature Page Parent
Paying Agent Agreement]
Agreed & Accepted:
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
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By:
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Name:
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Title:
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[Signature Page Parent
Paying Agent Agreement]
Fee Schedule
Project fee of $___________
Plus out-of-pocket and extraordinary expenses
Annual Maintenance fee.
Fees are payable prior to the effective date
Santander Bank NA.
601 Penn Street
Reading, PA 19601
ABA #
SWIFT CODE:
For further credit to: American Stock Transfer & Trust,
LLC
6201 15TH Avenue
Brooklyn, NY 11219
Account #
Reference: Company name
Attn: Accounts Receivable
The party below is responsible for payment
of the fees:
Name:
Attention:
Address:
Address:
Address:
Facsimile:
Phone:
Email:
The fees quoted in this schedule apply
to services ordinarily rendered by American Stock Transfer & Trust Company, LLC (“AST”) as paying agent
and are subject to adjustment based on final review of documents, or when AST is called upon to undertake unusual duties or responsibilities,
or as changes in law, procedures, or the cost of doing business demand. Out-of-pocket expenses include, but are not limited to,
1099’s (calculations, production, print, mail, and IRS reporting), cost basis calculations and reporting, and regulatory
mailings. Furthermore, the fees quoted in this schedule are based upon information provided to AST and are subject to change upon
modification or supplementation of such information resulting in the provision of additional services by AST. Services in addition
to and not contemplated in this Agreement, including, but not limited to, document amendments and revisions, calculations, notices
and reports, legal fees and unanticipated transaction costs (including charges for wire transfers, checks, internal transfers and
securities transactions) will be billed as extraordinary expenses.
Exhibit D
Form of FIRPTA Certificate
[DATE
OF CLOSING]
Via
Certified Mail
Internal
Revenue Service
Ogden
Service Center
P.O.
Box 409101
Ogden,
UT 84406
Re:
Notice Pursuant to Treasury Regulations Section 1.897-2(h)(2)
Ladies
and Gentlemen:
At
the request of Magic Intermediate, LLC, a Delaware limited liability company, (“Parent”), in connection
with the acquisition of the outstanding capital stock of Majesco, a California corporation (“Company”),
Company provided the attached statement to Parent on the date hereof.
This notice is provided pursuant to the requirements of Treasury Regulations Section 1.897-2(h)(2). A copy of a certificate, dated
as of the date of this notice, furnished to Parent by Company under Treasury Regulations Section 1.1445-2(c)(3) (the “FIRPTA
Certificate”) is attached hereto.
The
following information relates to the corporation providing the notice:
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Name:
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Majesco
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Address:
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412 Mount Kemble Ave.
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Suite 110c
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Morristown, NJ 07960
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Taxpayer ID Number:
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[●]
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The
attached statement was not requested by a foreign interest holder. It was voluntarily provided by Company in response to a request
from the Parent in accordance with Treasury Regulations Section 1.1445-2(c)(3)(i).
The
following information relates to the corporation that requested the notice:
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Name:
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Magic Intermediate, LLC
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Address:
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Taxpayer ID Number:
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[●]
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The
interest in question (capital stock of Company) is not a “United States real property interest”, as that term is defined
in Section 897(c)(1)(A) of the Internal Revenue Code of 1986, as amended (the “Code”) because Company
is not, and has not been within the five-year period preceding the date hereof, a “United States real property holding corporation”
as that term is defined in Section 897(c)(2) of the Code.
Under
penalties of perjury, the undersigned, an officer of Company, declares that the above notice (including the FIRPTA Certificate
attached hereto) is correct to his knowledge and belief and further declares that he has the authority to sign this document on
behalf of Company.
Enclosed
is a duplicate signed copy of this notice that we ask to be date stamped received by the Internal Revenue Service and returned
to us in the self-addressed stamped envelope provided.
Certificate
Under Treasury Regulations Section 1.1445-2(c)(3)
Section 1445
of the Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee (buyer) of a
United States real property interest must withhold tax if the transferor (seller) is not a United States person. In order to confirm
that Magic Intermediate, LLC, a Delaware limited liability company (“Parent”), as transferee, is not required
to withhold tax upon its acquisition of all the outstanding capital stock of Majesco, a California corporation (“Company”),
the undersigned, an officer of Company, hereby certifies as follows:
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1.
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The
stock of Company does not constitute a “United States real property interest”,
as that term is defined in Section 897(c)(1)(A) of the Code;
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2.
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The
determination in Paragraph 1, above, is based on a determination by Company that
Company is not, and has not been a “United States real property holding corporation”,
as that term is defined in Section 897(c)(2) of the Code, during the five-year period
ending on the date hereof;
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3.
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Company’s
federal employer identification number is [●]; and
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4.
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Company’s
office address is:
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Majesco
412
Mount Kemble Ave.
Suite
110c
Morristown,
NJ 07960
Company
understands that this certification may be disclosed to the Internal Revenue Service by Parent and that any false statement contained
herein could be punished by fine, imprisonment or both.
This
certification constitutes authorization for Parent, as agent for Company, to deliver a copy of this certification letter, along
with the appropriate notification, to the Internal Revenue Service on behalf of Company.
Under
penalties of perjury I declare that I have examined this certification and, to the best of my knowledge and belief, it is true,
correct, and complete, and I further declare that I have the authority to sign this document on behalf of Company.
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Dated:
[●], 2020
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MAJESCO
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By:
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Title:
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Annex
B
NOMURA SECURITIES INTERNATIONAL, INC.
309 West 49th Street, New York, NY 10019-7316
(212) 667-9300
www.nomura.com
August 7, 2020
The Board of Directors
Majesco
412 Mt. Kemble Ave., Suite 110C
Morristown, New Jersey
07960
Ladies and Gentlemen:
We understand that
Majesco, a California corporation (the “Company”), is considering a transaction whereby Magic Intermediate, LLC, a
Delaware limited liability company (“Parent”) will effect a merger involving the Company.
Pursuant to the terms
of an Amended and Restated Agreement and Plan of Merger (the “Agreement”), among the Company, Parent and Magic Merger
Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Merger Sub will merge with
the Company, as a result of which the Company will become a wholly owned subsidiary of Parent (the “Transaction”),
and all of the issued and outstanding shares of the common stock, par value $0.002 per share, of the Company (“Company Common
Stock”), other than the Excluded Shares (as defined in the Agreement), will be converted into the right to receive, for each
outstanding share of Company Common Stock, $16.00 in cash (the “Consideration”). The terms and conditions of the Transaction
are more fully set forth in the Agreement.
You have requested
our opinion as to the fairness, from a financial point of view, to the holders of the Company Common Stock (other than the holders
of the Excluded Shares (the “Excluded Holders”) in respect of their respective holdings of Excluded Shares) of the
Consideration to be received by the holders of the Company Common Stock (other than the Excluded Holders) in the Transaction.
Nomura Securities
International, Inc. (“Nomura”) has acted as financial advisor to the Company in connection with the Transaction and
will receive fees for its services, including a fee which is payable in connection with this opinion and an additional fee which
is contingent upon consummation of the Transaction. In addition, the Company has also agreed to reimburse Nomura’s expenses
and indemnify Nomura against certain liabilities arising out of its engagement. During the past two years, Nomura and its affiliates
have provided, and may in the future provide, investment banking and other financial services to Parent or its affiliates unrelated
to the proposed Transaction, for which Nomura and its affiliates have received, or may receive, compensation. Nomura and its affiliates
are engaged in financial services, including, without limitation, investment banking, financial advisory, corporate finance, retail
banking, securities and derivatives trading, asset finance, merchant banking and asset management.
In the ordinary course of business, Nomura, its successors and affiliates may hold or trade, for their own accounts and the accounts
of their customers, the equity, debt or other securities or financial instruments (including bank loans and other obligations)
of the Company or of affiliates of Parent or any currency or commodity that may be involved in the Transaction and, accordingly,
may at any time hold a long or short position in such securities, instruments, currencies or commodities (or in related derivatives).
Although this opinion
was approved by our Fairness Opinion Committee, our opinion does not address the relative merits of the Transaction as compared
to other business strategies or transactions that might be available with respect to the Company or the Company’s underlying business
decision to effect the Transaction. Our opinion does not constitute a recommendation to any shareholder as to how such shareholder
should vote or act with respect to the Transaction. At your direction, we have not been asked to, nor do we, offer any opinion
as to the terms, other than the Consideration to the extent expressly specified herein, of the Agreement or the form of the Transaction.
In rendering this opinion, we have assumed, with your consent, that (i) the final executed form of the Agreement will not differ
in any material respect from the draft that we have reviewed, (ii) the parties to the Agreement will comply with all material terms
of the Agreement, and (iii) the Transaction will be consummated in accordance with the terms of the Agreement without any adverse
waiver or amendment of any material term or condition thereof. We have also assumed that all governmental, regulatory or other
consents and approvals necessary for the consummation of the Transaction will be obtained without any adverse effect on the Company
or the expected benefits of the Transaction in any way meaningful to our analysis. We are not legal, regulatory, tax or accounting
experts and have relied on the assessments made by the Company and its advisors with respect to such issues.
In arriving at our
opinion, we have, among other things: (i) reviewed certain publicly available business and financial information relating to the
Company; (ii) reviewed certain internal financial information and other data relating to the business and financial prospects of
the Company that were provided to us by the management of the Company and not publicly available, including financial forecasts
and estimates prepared by management of the Company up to March 31, 2021; (iii) conducted discussions with members of the senior
management of the Company concerning the business and financial prospects of the Company; (iv) reviewed publicly available financial
and stock market data with respect to certain other companies we believe to be generally relevant; (v) compared the financial terms
of the Transaction with the publicly available financial terms of certain other transactions we believe to be generally relevant;
(vi) reviewed current and historical market prices of Company Common Stock; (vii) reviewed a draft of the Agreement dated August
6, 2020; and (viii) conducted such other financial studies, analyses and investigations, and considered such other information,
as we deemed necessary or appropriate.
As you are aware, management
of the Company did not provide any financial forecasts or estimates to Nomura beyond March 31, 2021. At your direction, therefore,
we did not perform a discounted cash flow analysis. The Company acknowledges that the results of the fairness analysis might have
been different had such financial forecasts and estimates been provided and a discounted cash flow analysis been performed.
In
connection with our review, with your consent, we have not assumed any responsibility for independent verification of any of the
information provided to or reviewed by us for the purpose of this opinion and have, with your consent, relied on such information
being complete and accurate in all material respects. In addition, with your consent, we have not made any independent evaluation
or appraisal of any of the assets or liabilities (contingent or otherwise) of the Company, nor have we been furnished with any
such evaluation or appraisal. We also have not evaluated, and do not express an opinion as to the impact of the Transaction on,
the solvency, viability or fair value of the Company under any state or federal law relating to bankruptcy, insolvency or similar
matters or the ability of the Company to pay its obligations when they become due. With respect to the financial forecasts and
estimates referred to above, we have assumed, at your direction, that they have been reasonably prepared on a basis reflecting
the best currently available estimates and judgments of the management of the Company as to the future financial performance of
the Company. In addition, we have assumed with your approval that the financial forecasts and estimates referred to above will
be achieved at the times and in the amounts projected. We express no opinion regarding the fairness of the amount or nature of
the compensation to any of the Company’s officers, directors or employees, or class of such persons, relative to the compensation
to the public shareholders of the Company, in connection with the Transaction. Our opinion is necessarily based on economic, monetary,
market and other conditions as in effect on, and the information available to us as of, the date hereof. It should be understood
that subsequent developments may affect this opinion.
Based upon and subject
to the foregoing, it is our opinion that, as of the date hereof, the Consideration to be received by holders of the Company Common
Stock (other than the Excluded Holders) in the Transaction is fair, from a financial point of view, to such holders.
This opinion is provided
solely for the benefit of the Board of Directors in connection with, and for the purpose of, its evaluation of the Consideration
in the Transaction and may not be disclosed to or relied upon by any third party or used for any other purpose without the prior
written consent of Nomura.
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Very truly yours,
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Nomura Securities International, Inc.
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Annex C
Chapter 13 of
the California General Corporation Law
§ 1300.
(a)
If the approval of the outstanding shares (Section 152) of a corporation is required for a reorganization under subdivisions (a) and
(b) or subdivision (e) or (f) of Section 1201, each shareholder of the corporation entitled to vote on the
transaction and each shareholder of a subsidiary corporation in a short-form merger may, by complying with this chapter, require
the corporation in which the shareholder holds shares to purchase for cash at their fair market value the shares owned by the shareholder
which are dissenting shares as defined in subdivision (b). The fair market value shall be determined as of the day of, and immediately
prior to, the first announcement of the terms of the proposed reorganization or short-form merger, excluding any appreciation or
depreciation in consequence of the proposed reorganization or short-form merger, as adjusted for any stock split, reverse stock
split, or share dividend that becomes effective thereafter.
(b)
As used in this chapter, “dissenting shares” means shares to which all of the following apply:
(1)
That were not, immediately prior to the reorganization or short-form merger, listed on any national securities exchange certified
by the Commissioner of Business Oversight under subdivision (o) of Section 25100, and the notice of meeting of shareholders
to act upon the reorganization summarizes this section and Sections 1301, 1302, 1303 and 1304; provided, however, that this provision
does not apply to any shares with respect to which there exists any restriction on transfer imposed by the corporation or by any
law or regulation; and provided, further, that this provision does not apply to any shares where the holder of those shares is
required, by the terms of the reorganization or short-form merger, to accept for the shares anything except: (A) shares of
any other corporation, which shares, at the time the reorganization or short-form merger is effective, are listed on any national
securities exchange certified by the Commissioner of Business Oversight under subdivision (o) of Section 25100; (B) cash
in lieu of fractional shares described in the foregoing subparagraph (A); or (C) any combination of the shares and cash in
lieu of fractional shares described in the foregoing subparagraphs (A) and (B).
(2)
That were outstanding on the date for the determination of shareholders entitled to vote on the reorganization and (A) were
not voted in favor of the reorganization or, (B) if described in paragraph (1), were voted against the reorganization, or
were held of record on the effective date of a short-form merger; provided, however, that subparagraph (A) rather than subparagraph
(B) of this paragraph applies in any case where the approval required by Section 1201 is sought by written consent rather
than at a meeting.
(3)
That the dissenting shareholder has demanded that the corporation purchase at their fair market value, in accordance with Section 1301.
(4)
That the dissenting shareholder has submitted for endorsement, in accordance with Section 1302.
(c)
As used in this chapter, “dissenting shareholder” means the recordholder of dissenting shares and includes a transferee
of record.
§ 1301.
(a)
If, in the case of a reorganization, any shareholders of a corporation have a right under Section 1300, subject to compliance
with paragraphs (3) and (4) of subdivision (b) thereof, to require the corporation to purchase their shares for
cash, that corporation shall mail to each of those shareholders a notice of the approval of the reorganization by its outstanding
shares (Section 152) within 10 days after the date of that approval, accompanied by a copy of Sections 1300, 1302, 1303, and 1304
and this section, a statement of the price determined by the corporation to represent the fair market value of the dissenting shares,
and a brief description of the procedure to be followed if the shareholder desires to exercise the shareholder’s right under
those sections. The statement of price constitutes an offer by the corporation to purchase at the price stated any dissenting shares
as defined in subdivision (b) of Section 1300, unless they lose their status as dissenting shares under Section 1309.
(b)
Any shareholder who has a right to require the corporation to purchase the shareholder’s shares for cash under Section 1300,
subject to compliance with paragraphs (3) and (4) of subdivision (b) thereof, and who desires the corporation to
purchase shares shall make written demand upon the corporation for the purchase of those shares and payment to the shareholder
in cash of their fair market value. The demand is not effective for any purpose unless it is received by the corporation or any
transfer agent thereof (1) in the case of shares described in subdivision (b) of Section 1300, not later than the
date of the shareholders’ meeting to vote upon the reorganization, or (2) in any other case, within 30 days after the
date on which the notice of the approval by the outstanding shares pursuant to subdivision (a) or the notice pursuant to subdivision
(h) of Section 1110 was mailed to the shareholder.
(c)
The demand shall state the number and class of the shares held of record by the shareholder which the shareholder demands that
the corporation purchase and shall contain a statement of what the shareholder claims to be the fair market value of those shares
as determined pursuant to subdivision (a) of Section 1300. The statement of fair market value constitutes an offer by
the shareholder to sell the shares at that price.
§ 1302.
Within
30 days after the date on which notice of the approval by the outstanding shares or the notice pursuant to subdivision (h) of
Section 1110 was mailed to the shareholder, the shareholder shall submit to the corporation at its principal office or at
the office of any transfer agent thereof, (a) if the shares are certificated securities, the shareholder’s certificates
representing any shares which the shareholder demands that the corporation purchase, to be stamped or endorsed with a statement
that the shares are dissenting shares or to be exchanged for certificates of appropriate denomination so stamped or endorsed or
(b) if the shares are uncertificated securities, written notice of the number of shares which the shareholder demands that
the corporation purchase. Upon subsequent transfers of the dissenting shares on the books of the corporation, the new certificates,
initial transaction statement, and other written statements issued therefor shall bear a like statement, together with the name
of the original dissenting holder of the shares.
§ 1303.
(a)
If the corporation and the shareholder agree that the shares are dissenting shares and agree upon the price of the shares, the
dissenting shareholder is entitled to the agreed price with interest thereon at the legal rate on judgments from the date of the
agreement. Any agreements fixing the fair market value of any dissenting shares as between the corporation and the holders thereof
shall be filed with the secretary of the corporation.
(b)
Subject to the provisions of Section 1306, payment of the fair market value of dissenting shares shall be made within 30 days
after the amount thereof has been agreed or within 30 days after any statutory or contractual conditions to the reorganization
are satisfied, whichever is later, and in the case of certificated securities, subject to surrender of the certificates therefor,
unless provided otherwise by agreement.
§ 1304.
(a)
If the corporation denies that the shares are dissenting shares, or the corporation and the shareholder fail to agree upon the
fair market value of the shares, then the shareholder demanding purchase of such shares as dissenting shares or any interested
corporation, within six months after the date on which notice of the approval by the outstanding shares (Section 152) or notice
pursuant to subdivision (h) of Section 1110 was mailed to the shareholder, but not thereafter, may file a complaint in
the superior court of the proper county praying the court to determine whether the shares are dissenting shares or the fair market
value of the dissenting shares or both or may intervene in any action pending on such a complaint.
(b)
Two or more dissenting shareholders may join as plaintiffs or be joined as defendants in any such action and two or more such actions
may be consolidated.
(c)
On the trial of the action, the court shall determine the issues. If the status of the shares as dissenting shares is in issue,
the court shall first determine that issue. If the fair market value of the dissenting shares is in issue, the court shall determine,
or shall appoint one or more impartial appraisers to determine, the fair market value of the shares.
§ 1305.
(a)
If the court appoints an appraiser or appraisers, they shall proceed forthwith to determine the fair market value per share. Within
the time fixed by the court, the appraisers, or a majority of them, shall make and file a report in the office of the clerk of
the court. Thereupon, on the motion of any party, the report shall be submitted to the court and considered on such evidence as
the court considers relevant. If the court finds the report reasonable, the court may confirm it.
(b)
If a majority of the appraisers appointed fail to make and file a report within 10 days from the date of their appointment or within
such further time as may be allowed by the court or the report is not confirmed by the court, the court shall determine the fair
market value of the dissenting shares.
(c)
Subject to the provisions of Section 1306, judgment shall be rendered against the corporation for payment of an amount equal
to the fair market value of each dissenting share multiplied by the number of dissenting shares which any dissenting shareholder
who is a party, or who has intervened, is entitled to require the corporation to purchase, with interest thereon at the legal rate
from the date on which judgment was entered.
(d)
Any such judgment shall be payable forthwith with respect to uncertificated securities and, with respect to certificated securities,
only upon the endorsement and delivery to the corporation of the certificates for the shares described in the judgment. Any party
may appeal from the judgment.
(e)
The costs of the action, including reasonable compensation to the appraisers to be fixed by the court, shall be assessed or apportioned
as the court considers equitable, but, if the appraisal exceeds the price offered by the corporation, the corporation shall pay
the costs (including in the discretion of the court attorneys’ fees, fees of expert witnesses and interest at the legal rate
on judgments from the date of compliance with Sections 1300, 1301 and 1302 if the value awarded by the court for the shares is
more than 125 percent of the price offered by the corporation under subdivision (a) of Section 1301).
§ 1306.
To
the extent that the provisions of Chapter 5 prevent the payment to any holders of dissenting shares of their fair market value,
they shall become creditors of the corporation for the amount thereof together with interest at the legal rate on judgments until
the date of payment, but subordinate to all other creditors in any liquidation proceeding, such debt to be payable when permissible
under the provisions of Chapter 5.
§ 1307.
Cash
dividends declared and paid by the corporation upon the dissenting shares after the date of approval of the reorganization by the
outstanding shares (Section 152) and prior to payment for the shares by the corporation shall be credited against the total amount
to be paid by the corporation therefor.
§ 1308.
Except
as expressly limited in this chapter, holders of dissenting shares continue to have all the rights and privileges incident to their
shares, until the fair market value of their shares is agreed upon or determined. A dissenting shareholder may not withdraw a demand
for payment unless the corporation consents thereto.
§ 1309.
Dissenting
shares lose their status as dissenting shares and the holders thereof cease to be dissenting shareholders and cease to be entitled
to require the corporation to purchase their shares upon the happening of any of the following:
(a)
The corporation abandons the reorganization. Upon abandonment of the reorganization, the corporation shall pay on demand to any
dissenting shareholder who has initiated proceedings in good faith under this chapter all necessary expenses incurred in such proceedings
and reasonable attorneys’ fees.
(b)
The shares are transferred prior to their submission for endorsement in accordance with Section 1302 or are surrendered for
conversion into shares of another class in accordance with the articles.
(c)
The dissenting shareholder and the corporation do not agree upon the status of the shares as dissenting shares or upon the purchase
price of the shares, and neither files a complaint or intervenes in a pending action as provided in Section 1304, within six
months after the date on which notice of the approval by the outstanding shares or notice pursuant to subdivision (h) of Section 1110
was mailed to the shareholder.
(d)
The dissenting shareholder, with the consent of the corporation, withdraws the shareholder’s demand for purchase of the dissenting
shares.
§ 1310.
If
litigation is instituted to test the sufficiency or regularity of the votes of the shareholders in authorizing a reorganization,
any proceedings under Sections 1304 and 1305 shall be suspended until final determination of such litigation.
§ 1311.
This
chapter, except Section 1312, does not apply to classes of shares whose terms and provisions specifically set forth the amount
to be paid in respect to such shares in the event of a reorganization or merger.
§ 1312.
(a)
No shareholder of a corporation who has a right under this chapter to demand payment of cash for the shares held by the shareholder
shall have any right at law or in equity to attack the validity of the reorganization or short-form merger, or to have the reorganization
or short-form merger set aside or rescinded, except in an action to test whether the number of shares required to authorize or
approve the reorganization have been legally voted in favor thereof; but any holder of shares of a class whose terms and provisions
specifically set forth the amount to be paid in respect to them in the event of a reorganization or short-form merger is entitled
to payment in accordance with those terms and provisions or, if the principal terms of the reorganization are approved pursuant
to subdivision (b) of Section 1202, is entitled to payment in accordance with the terms and provisions of the approved
reorganization.
(b)
If one of the parties to a reorganization or short-form merger is directly or indirectly controlled by, or under common control
with, another party to the reorganization or short-form merger, subdivision (a) shall not apply to any shareholder of such
party who has not demanded payment of cash for such shareholder’s shares pursuant to this chapter; but if the shareholder
institutes any action to attack the validity of the reorganization or short-form merger or to have the reorganization or short-form
merger set aside or rescinded, the shareholder shall not thereafter have any right to demand payment of cash for the shareholder’s
shares pursuant to this chapter. The court in any action attacking the validity of the reorganization or short-form merger or to
have the reorganization or short-form merger set aside or rescinded shall not restrain or enjoin the consummation of the transaction
except upon 10 days’ prior notice to the corporation and upon a determination by the court that clearly no other remedy will
adequately protect the complaining shareholder or the class of shareholders of which such shareholder is a member.
(c)
If one of the parties to a reorganization or short-form merger is directly or indirectly controlled by, or under common control
with, another party to the reorganization or short-form merger, in any action to attack the validity of the reorganization or short-form
merger or to have the reorganization or short-form merger set aside or rescinded, (1) a party to a reorganization or short-form
merger which controls another party to the reorganization or short-form merger shall have the burden of proving that the transaction
is just and reasonable as to the shareholders of the controlled party, and (2) a person who controls two or more parties to
a reorganization shall have the burden of proving that the transaction is just and reasonable as to the shareholders of any party
so controlled.
§ 1313.
A
conversion pursuant to Chapter 11.5 (commencing with Section 1150) shall be deemed to constitute a reorganization for purposes
of applying the provisions of this chapter, in accordance with and to the extent provided in Section 1159.
Annex D
SUPPORT
AGREEMENT
This
SUPPORT AGREEMENT (this “Agreement”), dated as of July 20, 2020, is entered into by and among Majesco Limited,
a public limited company domiciled in India (the “Principal Stockholder” or “Majesco Limited”),
which is the majority shareholder of Majesco, a California corporation (the “Company”), the Company, Magic
Intermediate, LLC, a Delaware limited liability company (“Parent”), and Magic Merger Sub, Inc., a Delaware
corporation and a wholly owned Subsidiary of Parent (“Merger Sub”). Principal Stockholder, the Company, Parent
and Merger Sub are sometimes referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Concurrently
with the execution and delivery of this Agreement, Parent, Merger Sub and the Company are entering into an Agreement and Plan
of Merger, dated as of the date hereof (as the same may be amended or otherwise modified in accordance with its terms after the
date hereof, the “Merger Agreement”), providing, among other things, for the Transactions.
B. As
of the date hereof, Principal Stockholder is the sole record and beneficial owner of the Existing Shares (as defined herein) reflected
in Schedule 1 attached hereto.
C. To
induce and as a condition to Parent and Merger Sub’s willingness to enter into the Merger Agreement, Principal Stockholder
(in its capacity as such) has agreed to enter into this Agreement.
D. Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
E.
References to “meeting” in relation to Principal Stockholder and/or “Principal Stockholder Shareholder Meeting”,
unless repugnant to the context thereof, includes electronic voting, postal ballot, postal ballot through electronic voting, physical
meeting(s) or virtual meeting(s) of the members of Principal Stockholder in accordance with the provisions of the (Indian) Companies
Act, 2013.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth
in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the Parties agree as follows:
1. Written
Consent; Voting; Return of Proxy; Proxy.
(a) Written
Consent. The Principal Shareholder shall, on or prior to the date hereof, provide the Parent with a certified true copy of
the resolution passed by the board of directors of the Principal Stockholder (such resolution, “Principal Stockholder
Board Resolution”) (i) approving this Agreement and the disinvestment of the Principal Stockholder’s entire share of
the Company Common Stock (the “Principal Stockholder Divestment”) pursuant to the Merger and (ii) resolving to
issue notice through postal ballot (such notice, the “Postal Ballot Notice”) to the members of the Principal
Stockholder for their approval of the Principal Stockholder Divestment pursuant to the Merger (such approval, the “Principal
Stockholder Shareholder Approval”) in accordance with the (Indian) Companies Act, 2013. The Principal Stockholder shall
ensure that the Postal Ballot Notice is issued to each member of the Principal Stockholder no later than 4 (four) Business Days
from the date hereof. If Principal Stockholder obtains the Principal Stockholder Shareholder Approval pursuant to and in accordance
with the Postal Ballot Notice, Principal Stockholder shall, (i) immediately, and in no event later than 24 (twenty-four) hours
of such receipt, notify the stock exchanges in India of the Principal Stockholder Shareholder Approval and (ii) in accordance
with the CCC, deliver the Written Consent in the Form attached as Exhibit A hereto within one (1) Business Day following
the publication through the stock exchange in India of the voting results of the shareholders’ resolution pursuant to the
Postal Ballot Notice.
(b) Voting.
Subject to receipt of the Principal Stockholder Shareholder Approval, at any meeting of the stockholders of the Company (the “Stockholders”)
and at every adjournment or postponement thereof, and on any action by or approval by written consent with respect to any of the
following matters, Principal Stockholder shall vote or cause all of its Covered Shares to be voted (in each case, including via
proxy) in accordance with such procedures related thereto so as to ensure that it is duly counted for purposes of determining
whether a quorum is present (A) for adoption and approval of the Merger Agreement and the Transactions and (B) against: (1) any
Acquisition Proposal (other than the Merger), or any agreement, transaction or other matter that is intended to, or would reasonably
be expected to, prevent, interfere or materially delay or effect the consummation of the Merger and the other Transactions, (2)
any action that is intended to, or would reasonably be expected to, result in a material breach of or failure to perform any representation,
warranty, covenant or agreement of the Company under the Merger Agreement that would result in any of the conditions set forth
in Article VIII of the Merger Agreement not being satisfied, (3) any action that would prevent, interfere or materially delay
or that is intended to, or would reasonably be expected to, prevent, interfere or materially delay, the consummation of the Merger
and the other Transactions or (4) any change in any manner to the voting rights of any Stockholders. Principal Stockholder shall
not take or agree to take any action which it has agreed not to take in this Section 1(b).
2. No
Disposition or Solicitation.
(a) No
Disposition or Adverse Act. Principal Stockholder hereby covenants and agrees that, except as expressly contemplated by this
Agreement and the Merger Agreement, Principal Stockholder shall not, without the prior written consent of Parent, (i) Transfer
(as defined below) or consent to any Transfer of any or all of the Covered Shares without the prior written consent of Parent,
(ii) grant any proxy, power-of-attorney or other authorization or consent or execute any agreement, arrangement, commitment or
undertaking, whether or not in writing, in or with respect to any or all of the Covered Shares (other than the Written Consent
or any proxy, power-of-attorney or other authorization or consent executed and delivered for the benefit of Parent and in accordance
with the Merger Agreement and this Agreement, which will not require the prior written consent of Parent), with any such prohibited
proxy, power-of-attorney, authorization, consent, agreement, arrangement, commitment or undertaking granted or purported to be
granted by Principal Stockholder being null and void ab initio, or (iii) deposit any or all of the Covered Shares into
a voting trust or enter into a voting agreement or other arrangement with respect to any or all of the Covered Shares. Any attempted
Transfer of the Covered Shares or any interest therein in violation of this Section 2(a) shall be null and void ab initio.
(b) No
Solicitation, Discussion or Negotiation.
(i) Commencing
on the date hereof, Principal Stockholder shall not, and shall cause Principal Stockholder’s directors, Affiliates and Representatives
not to, directly or indirectly, take or fail or take (as applicable) any of the actions set forth in Section 7.2 of the Merger
Agreement. From and after the date hereof, Principal Stockholder shall, and shall cause its directors, Affiliates and Representatives
to, immediately cease and cause to be terminated any activities, discussions or negotiations being conducted with any Persons
other than Parent and its Representatives with respect to any Acquisition Proposal; provided, however that, notwithstanding
the foregoing, until the date and time on which the Written Consent is delivered to Parent, Principal Stockholder and its Affiliates
may participate in discussions or negotiations with any Person regarding an Acquisition Proposal if (and solely to the extent
that), at such time (and only for such time as), the Company is permitted to engage in discussions or negotiations with such Person
regarding an Acquisition Proposal pursuant to Section 7.2 of the Merger Agreement, on the terms and subject to the conditions
set forth therein.
3. Additional
Agreements.
(a) Principal
Stockholder Shareholder Meeting. Principal Stockholder hereby agrees to undertake, in accordance with applicable Law and Principal
Stockholder’s organizational and formation documents, all actions necessary to (i) notify the Parties immediately, and in
no event later than 9 pm Indian Standard Time on August 25, 2020, of the result of the votes of its shareholders pursuant to the
Postal Ballot Notice and (ii) provide to its shareholders and the applicable Indian stock exchanges all communications that are
required or advisable under applicable Law, in each case promptly and, in any event, within the time periods (if any) required
under applicable Law and Principal Stockholder’s organizational and formation documents.
(b) Certain
Events(c) . In the event of any dividend, subdivision, reclassification, recapitalization, split, reverse split, split-up,
distribution, combination, exchange of shares or similar transaction or other change in the capital structure of the Company affecting
the Covered Shares or the acquisition of Additional Owned Shares (as defined below) by Principal Stockholder, (i) the type and
number of Covered Shares shall be adjusted appropriately to reflect the effect of such occurrence and (ii) this Agreement and
the Principal Stockholder’s obligations hereunder shall automatically attach to any such Additional Owned Shares issued
to or acquired by Principal Stockholder to the same extent as if they comprised the Covered Shares on the date hereof.
(c) Commencement
or Participation in Actions; Waiver of Appraisal Rights. Principal Stockholder hereby agrees not to commence or join in, and
to take all actions necessary to opt out of any class in any class action with respect to, any Transaction Litigation, including
any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger
Agreement, (ii) alleging a breach of any fiduciary duty of the Company or the Company Board or its members in connection with
the Merger Agreement or the transactions contemplated hereby or thereby or (iii) seeking to exercise any appraisal, dissenters’
and similar rights (including under Chapter 13 of the CCC or otherwise) in connection with the Transactions or the Merger Agreement.
Principal Stockholder hereby irrevocably and unconditionally waives all appraisal rights, dissenters’ rights and similar
rights arising under Chapter 13 of the CCC or otherwise with respect to all of the Covered Shares in connection with the Transactions
or the Merger Agreement.
(d) Additional
Owned Shares. Principal Stockholder hereby agrees to notify Parent promptly in writing of the number and description of any
Additional Owned Shares.
(e) Equity
Awards. Principal Stockholder shall take all actions necessary to accelerate the vesting of all outstanding equity awards
issued under the Principal Stockholder’s Employee Stock Option Scheme of Majesco Limited — Plan 1 (the “ESOP”)
to employees of the Company and its subsidiaries (the “Awards”), including submitting amendments to the ESOP required
to effectuate such acceleration and vesting to its shareholders for approval at the Principal Stockholder Shareholder Meeting
in accordance with applicable Law. Following receipt of such approval, Principal Stockholder shall satisfy all of its obligations
under the ESOP to the holders of such awards which have validly exercised their rights under such Awards as promptly as practicable
in accordance with applicable Laws and cancel all awards that require such cancellation under applicable Laws.
(f) No
Objection Certificate. Principal Stockholder shall promptly, and in any event prior to the Effective Time, procure the No
Objection Certificate and deliver to the Parent a copy of the No Objection Certificate obtained from the Indian Tax Authority
certifying that the Indian Tax Authority has no objection to the Principal Stockholder Divestment, without any attendant conditions
being imposed on the Principal Stockholder Divestment which could prevent the consummation of the Transaction. It is clarified
that for any other attendant condition, the Principal Stockholder and Parent shall enter into good faith discussions with respect
to such condition, with the end objective to consummate the Principal Stockholder Divestment.
(g) Use
of Name. Subject to applicable Law relating to the exchange of information, Parent shall have the right to review in advance
and, to the extent reasonably practicable, Principal Stockholder will consult with Parent on and consider in good faith the views
of Parent in connection with, all of the information relating to Parent or its other Affiliates, that appears in any filing made
with, or written materials submitted to, any third party or any Governmental Entity in connection with the Transactions.
(h) Transition
Services.
(i) For
a period of six (6) months following the Closing (the “Initial Transition Period”) and any applicable
Extension Period as set forth below (together with the Initial Transition Period, the “Transition Period”),
Principal Stockholder shall provide the following services to Majesco Software and Solutions India Private Limited (“MSSIPL”)
to MSSIPL: (A) all of the services provided by Farid Kazani (Managing Director and Group CFO), Varika Rastogi (Company Secretary),
Kunal Karan (CFO), N. P. Pai (Director Finance) and Neha A. Sangam (Administrator Legal), all of whom are employees of Principal
Stockholder, to MSSIPL in the twelve (12)-month period prior to the execution of the Merger Agreement, including pursuant to the
Cost Sharing Agreement, dated April 1, 2019, by and between Majesco Limited and MSSIPL (the “Personnel Services”);
and (B) at cost, all reasonable support to either transfer any existing insurance plans held by Principal Stockholder and relied
upon by the Company or any of its Subsidiaries (“Shared Insurance Plans”) or for the Company or its Subsidiaries
to establish replacement insurance plans (clauses (A) and (B), collectively, the “Transition Services”). The
Company (or MSSIPL, at the Company’s election) shall pay the Principal Stockholder $48,326 per month for the Principal Stockholder’s
provision of the Personnel Services, payable by the Company (or MISSIPL) in arrears within thirty (30) days following the Company’s
receipt of an invoice. During the Transition Period, Principal Stockholder shall not terminate the employment of any of the employees
providing the Personnel Services except in connection with a termination for cause. In the event that any such employee terminates
its employment relationship with Principal Stockholder prior to the end of the Transition Period, Principal Stockholder shall
use commercially reasonable efforts to continue to perform the Personnel Services without impact to MSSIPL.
(ii) To
the extent requested by MSSIPL or the Company, during the Transition Period, Principal Stockholder shall provide at cost any additional
services that were provided by Principal Stockholder to the Company or any of its Subsidiaries in the twelve (12)-month period
prior to the execution of the Merger Agreement but that are not currently contemplated under this Agreement or otherwise under
the Cost Sharing Agreement referenced in Section 3(h)(i).
(iii) The
Company may extend the period of time for which any Transition Services are provided beyond the initial six (6)-month period for
as many as two (2) additional one (1)-month periods (each such extended period, an “Extension Period”) by providing
written notice to Principal Stockholder at least thirty (30) days prior to the end of the Initial Transition Period.
(iv) The
Company may terminate the provision of any Transition Service (in whole or in part, including the provision of services by any
individual person) for convenience upon written notice to the Principal Stockholder on fifteen (15) days prior written notice
to Principal Stockholder, and, immediately upon such termination, all costs and fees associated with the terminated portion of
the Transition Services (including in the case of the termination of the services of an individual person, the portion of the
fee attributable to that person’s salary and other costs) will no longer be due or paid by the Company.
(v) The
Principal Stockholder shall use its best efforts to promptly transfer its right, title, and interest in that certain Master Software
License Agreement, dated June 7, 2012, by and among Principal Stockholder, MSSIPL and State Farm Automobile Insurance Company
(“State Farm Contract”) to the Company or one of its Subsidiaries or to remove itself as a party to the State
Farm Contract. Principal Stockholder shall promptly remit any amounts received by Principal Stockholder or any of its Affiliates
under the State Farm Contract following the Closing to the Company or MSSIPL (as directed by the Company).
(i) Intellectual
Property Assignment. To the extent Principal Stockholder owns any Intellectual Property related to the Company or its Subsidiaries’
businesses in any jurisdiction (the “Retained Intellectual Property”), Principal Stockholder hereby assigns
and conveys to Company all right title and interest in and to such Company Intellectual Property and all related intellectual
property rights, in each case, free and clear of any and all liens and without further consideration or any obligations, restrictions
or other limitations whatsoever, including any on the use, ownership or disposition of any such Retained Intellectual Property.
Principal Stockholder waives and agrees not to assert any and all rights in any Retained Intellectual Property. Principal Stockholder
agrees that the Company and its licensees shall have sole discretion with regard to how and for what purposes any Retained Intellectual
Property is used or distributed. At the Company’s request, Principal Stockholder agrees to (A) perform any acts to transfer,
perfect and defend the Company’s ownership of any Retained Intellectual Property or intellectual property rights therein,
including, but not limited to: (i) executing all documents (including any additional assignment documents to the Company) for
filing an application or registration for protection of the Inventions (an “Application”), (ii) explaining
the nature of the Retained Intellectual Property to persons designated by the Company, (iii) reviewing applications and other
related papers, or (iv) providing any other assistance reasonably required for the orderly prosecution of Applications and (B)
perform any acts to assist the Company in defending and enforcing any rights in the Retained Intellectual Property.
(j) Termination
of Intercompany Agreements. Effective as of the Closing Date, the Parties agree to terminate all Contracts between Principal
Stockholder on the one hand, and the Company or any of its Subsidiaries on the other hand, other than this Agreement, the Business
Transfer Agreement, dated April 1, 2019, by and between Principal Stockholder and MSSIPL and the Leave & License Agreement,
dated May 16, 2019, as amended, including the following: (i) the Memorandum of Understanding, dated August 2, 2016; (ii) the Memorandum
of Understanding, dated May 16. 2019; and (iii) the Cost Sharing Agreement, dated April 1, 2019.
4. Representations
and Warranties of Principal Stockholder. Principal Stockholder represents and warrants to each of Parent and Merger Sub as
to itself as follows:
(a) Title.
Principal Stockholder is the sole record and beneficial owner of the Existing Shares. The Existing Shares constitute all of the
Company Common Stock owned of record or beneficially by Principal Stockholder on the date hereof. Principal Stockholder has sole
voting power with respect to all of the Covered Shares, and none of the Covered Shares are subject to any voting trust, voting
agreement or other arrangement with respect to the voting of the Covered Shares, except pursuant to the terms of this Agreement.
Except as permitted or required by this Agreement, the Covered Shares (and the certificates representing such Covered Shares,
if any) are now free and clear of any and all Encumbrances whatsoever on title, or restrictions on transfer (other than under
applicable securities Laws and as created by this Agreement).
(b) Organization
and Qualification. Principal Stockholder is a legal entity duly formed or organized (as applicable), validly existing and
in good standing under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(c) Authority.
Principal Stockholder has all necessary power and authority and shall undertake all action necessary in order to execute and deliver
this Agreement and perform all of Principal Stockholder’s obligations under this Agreement, and except for the receipt of
the Principal Stockholder Shareholder Approval, no other proceedings or actions on the part of Principal Stockholder or its board
of directors or other entity governing body or any other Person are necessary to authorize the execution, delivery and performance
by Principal Stockholder of this Agreement.
(d) Due
Execution and Delivery. This Agreement has been duly executed and delivered by Principal Stockholder and, assuming due authorization,
execution and delivery of this Agreement by the Company, Parent and Merger Sub, constitutes a legal, valid and binding obligation
of Principal Stockholder, enforceable against Principal Stockholder in accordance with its terms, subject to the Bankruptcy and
Equity Exception.
(e) No
Conflict; Consents.
(i) The
execution and delivery of this Agreement by Principal Stockholder does not, and the performance by Principal Stockholder of its
obligations under this Agreement and the compliance by Principal Stockholder with any provisions hereof does not and will not:
(a) conflict with or violate any material Laws applicable to Principal Stockholder, or the constitutional documents of Principal
Stockholder; or (b) result in any material breach or constitute a default (or an event that with notice or lapse of time or both
would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of,
pursuant to any Contract or obligation to which Principal Stockholder is a party or by which Principal Stockholder is subject.
(ii) No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations
promulgated under the Exchange Act, filing with, any Governmental Entity or any other Person, is required by or with respect to
Principal Stockholder in connection with the execution and delivery of this Agreement or the performance by Principal Stockholder
of the obligations contemplated hereby. In providing this representation, Principal Stockholder notes that consummation of the
Closing is conditioned upon receipt of approval by the Reserve Bank of India.
(f) Absence
of Litigation. As of the date hereof, to the best of the Principal Stockholder’s knowledge, there is no material Proceeding
pending against, or, to the knowledge of Principal Stockholder, threatened against or affecting Principal Stockholder that would
reasonably be expected to impair the ability of Principal Stockholder to perform its obligations hereunder on a timely basis.
(g) Sufficiency
of Assets. As of the date hereof and as of the Closing Date, (y) all Company Intellectual Property is owned or validly licensed
by the Company and (z) the Company or one of its Subsidiaries, as applicable, owns or has sufficient rights (and as of the Closing
will continue to own or have sufficient rights) pursuant to a valid and enforceable right, license or leasehold interest in or
to all of the property and assets, whether tangible or intangible, (i) necessary for, used or held for use or useful in the conduct
of the business of the Company and its Subsidiaries as presently conducted and as conducted in the twenty-four (24) months prior
to the date hereof, (ii) located on its premises to the extent related to the business of the Company and its Subsidiaries, or
(iii) reflected on the consolidated balance sheets included in or incorporated by reference into the Company Reports or acquired
since March 31, 2020, in each case, free and clear of all Encumbrances, except for Permitted Encumbrances. Immediately after the
Closing, such assets will be owned or available for use by Parent and its Subsidiaries on terms and conditions identical to those
under which the Company and its Subsidiaries owned or used such assets immediately prior to the Closing, without payment of additional
amounts or consideration, and no consent of, or intimation to, a Governmental Entity or third party will be required prior to
the execution of this Agreement or completion of the Transactions contemplated herein, and for the avoidance of doubt, except
as set forth in Section 5.22 of the Company Disclosure Letter to the Merger Agreement, neither Magic Limited nor any other
Person will continue to own any assets used or useful in, or otherwise related to, the business of the Company and its Subsidiaries
after the Closing.
5. Representations
and Warranties of Parent and Merger Sub. Each of Parent and Merger Sub severally, and not jointly and severally, represent
and warrant to Principal Stockholder as to itself as follows:
(a) Organization
and Qualification. Such Party is a legal entity duly formed or organized (as applicable), validly existing and in good standing
under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(b) Authority.
Such Party has the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement,
to perform all of its obligations hereunder and to consummate the transactions contemplated hereby, and no other proceedings or
actions on the part of such Party or its board of directors or managers or any other Person are required to authorize the execution,
delivery or performance by such Party of this Agreement and the consummation of the transactions contemplated hereby.
(c) Due
Execution and Delivery. This Agreement has been duly executed and delivered by such Party, and, assuming due authorization,
execution and delivery of this Agreement by Principal Stockholder and Company, constitutes a legal, valid and binding obligation
of such Party, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception.
6. Termination.
(a) Term.
The term of this Agreement shall commence on the date hereof and shall immediately terminate upon the earliest of, without the
need for any further action by any Person, (i) the mutual written agreement of the Parties, (ii) the consummation of the Closing
or (iii) the termination of the Merger Agreement pursuant to Article IX therein (the “Termination Date”, and
the period of time from the date hereof to and including the effective date of such mutual written agreement, in the case of the
foregoing clause (i), the Closing Date, in the case of the foregoing clause (ii), or the Termination Date, in the case of the
foregoing clause (iii), the “Term”).
7. Miscellaneous.
(a) Notices.
All notices, requests, instructions, consents, claims, demands, waivers, approvals and other communications to be given or made
hereunder by one or more Parties to one or more of the other Parties shall be in writing and shall be deemed to have been duly
given or made upon actual receipt, if delivered personally; three (3) Business Days after deposit in the mail, if sent by registered
or certified mail; upon confirmation of successful transmission if sent by email; or on the two (2) Business Days after deposit
with an overnight courier, if sent by an overnight courier. Such communications shall be sent to the respective Parties at the
following street addresses or email addresses or at such other street address or email address for a Party as shall be specified
for such purpose in a notice given in accordance with this Section 7(a):
If
to the Company:
|
Majesco
|
|
412
Mount Kemble Ave., Suite 110C
|
|
Morristown,
NJ 07960
|
|
Attention:
|
Lori
Stanley
|
|
Telephone:
|
(973)
461-5200
|
|
Email:
|
Lori.Stanley@majesco.com
|
with
a copy to (which shall not constitute notice):
|
Sheppard,
Mullin, Richter & Hampton LLP
|
|
30
Rockefeller Plaza
|
|
New
York, NY 10112
|
|
Attention:
|
Valérie
Demont and John Tishler
|
|
Telephone:
|
(212)
634-3040
|
|
|
(858)
720-8943
|
|
Email:
|
vdemont@sheppardmullin.com
|
|
|
jtishler@sheppardmullin.com
|
If
to Principal Stockholder:
|
Majesco
Limited
|
|
MNDC,
MBP-P-136, Mahape,
|
|
Navi
Mumbai – 400 710,
|
|
Maharashtra,
India
|
|
Attention:
|
Mr.
Farid Kazani
|
|
Telephone:
|
+91-22-6150
1800
|
|
Email:
|
Farid.Kazani@majesco.com
|
with
a copy to (which shall not constitute notice):
|
Khaitan
& Co
|
|
One
Indiabulls Centre
Tower
1, 13th Floor
841
Senapati Bapat Marg
Mumbai,
400013
India
|
|
Attention:
|
Sudhir
Bassi and Soumya Mohapatra
|
|
Telephone:
|
+
91 22 6636 5000
|
|
Email:
|
sudhir.bassi@khaitanco.com
|
|
|
Soumya.mohapatra@khaitanco.com
|
If
to Parent or Merger Sub:
|
c/o
Thoma Bravo, L.P.
600
Montgomery Street, 20th Floor
San Francisco, CA 91444
|
|
Attention:
|
A.J.
Rohde and Matt LoSardo
|
|
Email:
|
arohde@thomabravo.com,
mlosardo@thomabravo.com
|
with
a copy to (which shall not constitute notice):
|
Kirkland &
Ellis LLP
300
N. LaSalle Street
Chicago, Illinois 60654
|
|
Attention:
|
Theodore
A. Peto, P.C., Bradley C. Reed, P.C. and Aisha P. Lavinier
|
|
Email:
|
tpeto@kirkland.com,
bradley.reed@kirkland.com,
aisha.lavinier@kirkland.com
|
(b) Entire
Agreement. This Agreement (including the schedules and exhibits referred to in this Agreement) constitutes the entire agreement
among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations,
understandings and, representations and warranties, whether oral or written, with respect to the subject matters hereof.
(c) Merger
Agreement. Sections 7.11, 10.2(b)(iv), 10.2(b)(vi), 10.2(b)(vii) 10.2(b)(ix), 10.4, 10.8, 10.12 and 10.13 of the Merger Agreement
shall apply, mutatis mutandis, to this Agreement.
(d) No
Ownership Interest. Nothing contained in this Agreement shall be deemed, upon execution, to vest in Parent any direct or indirect
ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and
relating to the Covered Shares shall remain vested in and belong to Principal Stockholder, and Parent shall have no authority
to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise
any power or authority to direct Principal Stockholder in the voting of any of the Covered Shares, except as otherwise provided
herein.
(e) Certain
Definitions. For the purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective
meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them below or elsewhere in
this Agreement:
“Additional
Owned Shares” means all shares of Company Common Stock that Principal Stockholder may own of record or beneficially
and acquire after the date hereof.
“Affiliate”
has the meaning set forth in the Merger Agreement; provided, however, that for purposes of this Agreement, none
of the Company or its Subsidiaries (or any of their respective officers or directors) shall constitute an Affiliate of Principal
Stockholder.
“beneficial
ownership” (and related terms such as “owned beneficially”, “beneficially owned” or “beneficial
owner”) has the meaning set forth in Rule 13d-3 under the Exchange Act.
“Business
Day” means any day ending at 11:59 p.m. IST other than a Saturday or Sunday or a day on which banks in the City of New
York, the State of California or India are required or authorized by Law to close.
“Covered
Shares” means the Existing Shares and Additional Owned Shares.
“Existing
Shares” means all of the shares of Company Common Stock that are owned beneficially or of record by Principal Stockholder
as of the date hereof, which shares are forth opposite Principal Stockholder’s name on Schedule 1 hereto.
“Transfer”
means, with respect to any Covered Share, the direct or indirect (a) transfer, pledge, hypothecation, encumbrance, assignment,
exchange, transfer or other disposition (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution,
operation of law or otherwise), either voluntary or involuntary, of such Covered Share or any interest therein or the beneficial
ownership thereof or (b) any agreement, arrangement, commitment or understanding whether or not in writing, to effect any of the
actions referred to in the foregoing clause (a) (in each case other than this Agreement).
(f) Remedies.
Each of the Parties acknowledges and agrees that the rights of each Party to consummate the transactions contemplated by this
Agreement are special, unique and of extraordinary character and that if for any reason any of the provisions of this Agreement
are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or damage
would be caused for which money damages would not be an adequate remedy. Accordingly, each Party agrees that, in addition to any
other available remedies that a Party may have in equity or at Law, each Party shall be entitled to enforce specifically the terms
and provisions of this Agreement and to obtain an injunction restraining any breach or violation or threatened breach or violation
of the provisions of this Agreement in the courts of the State of California without necessity of posting a bond or other form
of security. In the event that any Proceeding should be brought in equity to enforce the provisions of this Agreement, no Party
shall allege, and each Party hereby waives the defense, that there is an adequate remedy at law. It is the intention of the Parties
that, to the extent possible, unless provisions are mutually exclusive and effect cannot be given to both or all such provisions,
the representations, warranties, covenants and closing conditions in this Agreement will be construed to be cumulative and that
each representation, warranty, covenant and closing condition in this Agreement will be given full, separate and independent effect
and nothing set forth in any provision herein will in any way be deemed to limit the scope, applicability or effect of any other
provision hereof.
(h) Governing
Law and Venue; Submission to Jurisdiction; Arbitration of Disputes. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OR ANY OTHER JURISDICTION) TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER
TO ANOTHER JURISDICTION.
(i) Except
as permitted under Section 7(f), any dispute arising out of or relating to this Agreement shall be exclusively and finally
settled by confidential arbitration in accordance with the rules of the American Arbitration Association. Unless otherwise agreed
in writing by the parties, the arbitral tribunal shall consist of three arbitrators and the seat of the arbitration shall be in
the State of California. All arbitration proceedings, including all written submissions and evidence provided, shall be confidential
and shall not be disclosed to any third party, except to the extent: (i) required by applicable law, (ii) required in connection
with any court application for interim relief or post-arbitration confirmation or enforcement proceedings, or (iii) all other
parties to the arbitration proceedings consent to the disclosure. The arbitration hearing shall be held as promptly as possible,
and in any event, within twelve months after the filing of the arbitration demand with the AAA. The award shall be enforceable
in any court of competent jurisdiction. The Parties undertake to carry out any decision or award of the tribunal without delay.
(j) Disclosure.
(i) Parent
and Merger Sub hereby acknowledge that Principal Stockholder is required under the laws of its incorporation to disclose this
Agreement and the contents contained herein to its stockholders, the Indian Stock Exchanges where its equity shares are listed,
and the Reserve Bank of India for the purpose of obtaining its consent to the Transactions. Accordingly, Principal Stockholder
shall be permitted to disclose this Agreement and the contents contained herein for such purposes and as otherwise required by
applicable Law.
(ii) Principal
Stockholder hereby consents to and authorizes the publication and disclosure by the Company, Parent and Merger Sub of Principal
Stockholder’s identity and holding of the Covered Shares, and this Agreement and the contents contained herein in any press
release, Form 10-K, proxy statement and any other disclosure document required in connection with the Merger Agreement and the
Transactions.
(k) Modification
or Amendment. This Agreement may be amended, modified or waived if such amendment, modification or waiver is in writing and
signed by all of the Parties.
(l) Further
Assurances. Principal Stockholder agrees, from time to time, at the reasonable request of Parent or Merger Sub and without
further consideration, to execute and deliver such additional documents and take all such further action as may be reasonably
required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
(m) Stop
Transfer Instructions. At all times commencing with the execution and delivery of this Agreement and continuing until the
Termination date, in furtherance of this Agreement, Principal Stockholder hereby authorizes the Company to notify the Company’s
transfer agent that there is a stop transfer order with respect to all of the Covered Shares (and that this Agreement places limits
on the voting and transfer of the Covered Shares), subject to the provisions hereof and provided that any such stop transfer order
and notice will immediately be withdrawn and terminated by the Company following the Termination Date.
[Signatures
on Following Pages.]
IN
WITNESS WHEREOF, Parent, Merger Sub, the Company and Principal Stockholder have caused this Agreement to be duly executed as of
the day and year first above written.
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PARENT:
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MAGIC INTEREMEDIATE, LLC
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/s/ A.J. Rohde
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Name:
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A.J.
Rohde
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Title:
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President
and Assistant Secretary
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MERGER
SUB:
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MAGIC MERGER SUB, INC.
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/s/ A.J. Rohde
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Name:
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A.J.
Rohde
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Title:
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President
and Assistant Secretary
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[Signature
Page to Support Agreement]
IN
WITNESS WHEREOF, Parent, Merger Sub, the Company and Principal Stockholder have caused this Agreement to be duly executed as of
the day and year first above written.
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PRINCIPAL
STOCKHOLDER:
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MAJESCO LIMITED
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/s/ Farid Kazani
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Name:
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Farid
Kazani
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Title:
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Managing
Director
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[Signature
Page to Support Agreement]
IN
WITNESS WHEREOF, Parent, Merger Sub, the Company and Principal Stockholder have caused this Agreement to be duly executed as of
the day and year first above written.
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COMPANY:
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MAJESCO
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By
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/s/ Adam Elster
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Name:
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Adam
Elster
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Title:
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Chief
Executive Officer
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[Signature
Page to Support Agreement]
Schedule 1
Ownership of Existing Shares
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PRINCIPAL STOCKHOLDER
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SHARES OF COMMON STOCK OWNED*
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Majesco Limited
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32,111,234 shares
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*If any additional shares of Company Common
Stock are owned beneficially or of record by Principal Stockholder as of or following the date hereof, such shares shall be automatically
deemed to be “Owned Shares” for all purposes under this Agreement notwithstanding the contents of this Schedule
1.
EXHIBIT
A
Stockholder
Written Consent
Majesco
Action
by Written Consent of the Stockholders
Pursuant to Section 603 of the California Corporations Code of the State of California
The
undersigned stockholder of Majesco, a California corporation (the “Company”), being the holder of a majority
in voting power of the issued and outstanding shares of common stock of the Company, par value $0.002 per share (the “Common
Stock”), of the Company, constituting the requisite vote of the stockholders of the Company, pursuant to Section 603
of the California Corporations Code, as amended (“CCC”), and the Amended and Restated Articles of Incorporation
and Amended and Restated Bylaws of the Company, in each case, as amended through the date hereof, DOES HEREBY CONSENT to the adoption
of, and DOES HEREBY ADOPT the following resolutions in lieu of a meeting of the holders of Common Stock (the “Stockholders”)
with the same force and effect as if taken at a duly convened meeting of the Stockholders. This written consent may be executed
in one or more counterparts and shall become effective upon the execution of this Written Consent by the undersigned Stockholder.
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (defined
below).
WHEREAS,
the board of directors of the Company (the “Board”) has (a) unanimously approved and declared advisable that
certain Agreement and Plan of Merger (in the form attached hereto as Exhibit A, including the exhibits and schedules thereto,
the “Merger Agreement”), dated as of July 20, 2020, by and among Magic Intermediate, LLC, a Delaware limited
liability company (“Parent”), Magic Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger Sub”), and the Company, and the transactions contemplated thereby (including, but not limited
to the Merger, collectively, the “Transactions”), on the terms and subject to the conditions set forth in the
Merger Agreement, (b) determined that the Merger Agreement and the Transactions are fair to, and in the best interests of the
Stockholders, and (c) recommended that the Stockholders approve the Merger Agreement and the consummation by the Company of the
Transactions;
WHEREAS,
the Board (a) has submitted the Merger Agreement to a vote of the Stockholders, and (b) seeks this written consent of the Stockholders
(in lieu of a meeting of the Stockholders) to approve the Merger Agreement and the Transactions;
WHEREAS,
the Merger Agreement provides for the merger (the “Merger”) of Merger Sub with and into the Company, whereby
the separate corporate existence of the Merger Sub will cease and the Company will continue as the surviving corporation and as
a wholly-owned subsidiary of Parent;
WHEREAS,
the undersigned Stockholder is the holder of a majority in voting power of the Common Stock, constituting the requisite vote of
the Stockholders pursuant to the CCC;
WHEREAS,
the undersigned Stockholder has been afforded an opportunity to review the Merger Agreement and to ask questions of the Company
regarding the Merger Agreement and the Transactions;
WHEREAS,
the undersigned hereby acknowledges that the Merger Agreement provides that the Merger Agreement may be terminated and abandoned
at any time prior to the Effective Time (as defined therein), in the manner provided therein, including by the Company and Parent
in the manner provided in the Merger Agreement;
WHEREAS,
the undersigned Stockholder hereby acknowledges that this Written Consent is irrevocable; and
WHEREAS,
the undersigned Stockholder reaffirms that, pursuant to the terms of that certain Support Agreement, dated as of July 20, 2020,
by and among the Company, the undersigned Stockholder, Parent and Merger Sub, such Stockholder irrevocably waived any dissenters’,
appraisal and similar rights under the CCC or otherwise, in connection with the Merger Agreement and the Transactions.
NOW,
THEREFORE, BE IT RESOLVED, that the undersigned Stockholder irrevocably and unconditionally hereby approves the Merger Agreement
and the Transactions, in accordance with Sections 152, 603 and 1201 and any other applicable provisions of the CCC; and
FURTHER,
RESOLVED, that any specific resolutions that may be required to have been adopted by the Stockholders in connection with the
consummation of the Transactions contemplated by the foregoing resolutions be, and the same hereby are, adopted, and that each
officer of the undersigned Stockholder be, and hereby is, authorized in the name and on behalf of the undersigned Stockholder
to certify as to the adoption of any and all such resolutions.
[Signatures
on the Following Page]
The
undersigned Stockholder, by executing this written consent in the space provided below, does hereby consent to the adoption of,
and does hereby adopt the foregoing resolutions as of the date written below. This written consent shall be filed with the minutes
of the proceedings of the Company.
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Dated:
, 2020
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MAJESCO LIMITED
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By:
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Name:
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Title:
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Annex E
AMENDMENT TO SUPPORT AGREEMENT
This AMENDMENT (this “Amendment”)
to that certain Support Agreement, dated as of July 20, 2020, entered into by and among Majesco Limited, a public limited company
domiciled in India (the “Principal Stockholder” or “Majesco Limited”), which is the majority
shareholder of Majesco, a California corporation (the “Company”), the Company, Magic Intermediate, LLC, a Delaware
limited liability company (“Parent”), and Magic Merger Sub, Inc., a Delaware corporation and a wholly owned
Subsidiary of Parent (“Merger Sub”) is entered into as of August 8 , 2020 (the “Execution Date”)
by and among the Principal Stockholder, the Company, Parent and Merger Sub, each of whom are sometimes referred to individually
as a “Party” and collectively as the “Parties.”
RECITALS
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(A)
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Parent, the Company and the Merger Sub, have, on July 20, 2020, entered into an Agreement and Plan
of Merger. On the date hereof, the Company, Parent and Merger Sub entered into that certain Amended and Restated Agreement and
Plan of Merger (as the same may be amended or otherwise modified in accordance with its terms after the date hereof, the “Merger
Agreement”) in order to provide, among other things, for the Merger and the other Transactions (in each case, as defined
in the Merger Agreement) (the “Proposed Transaction”).
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(B)
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To induce and as a condition to Parent and Merger Sub’s willingness to enter into the Merger
Agreement, Principal Stockholder (in its capacity as such) agreed to enter into the Support Agreement to record the mutual understanding
of the Parties in relation to the Proposed Transaction.
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(C)
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The board of directors of the Principal Stockholder through a resolution, dated as of July 20,
2020, unanimously (i) approved the Support Agreement and the Principal Stockholder Divestment pursuant to the Merger and (ii) resolved
that notice has been issued through Postal Ballot Notice to the members of the Principal Stockholder for their approval to the
Principal Stockholder Divestment pursuant to the Merger (such approval, the “Principal Stockholder Shareholder Approval”)
in accordance with the (Indian) Companies Act, 2013.
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(D)
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The postal ballot notice, dated as of July 20, 2020 (the “Original Postal Ballot Notice”),
was issued to the members of the Principal Stockholder by July 23, 2020. The voting period under the terms of the Original Postal
Ballot Notice commenced on July 24, 2020 and is scheduled to end on August 22, 2020.
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(E)
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In order to record the revised understanding of the Parties in relation to certain terms and conditions
of the Support Agreement as specified herein, the Parties are entering into this Amendment to amend the Support Agreement only
to the extent set forth herein.
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NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements set forth herein and in the Support Agreement and Merger Agreement and
for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and intending
to be legally bound hereby, the Parties agree as follows:
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1.
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Except as specified otherwise herein, capitalized terms used but not specifically defined in this
Amendment have the respective meanings ascribed to such terms in the Support Agreement.
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2.
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References to “meeting” in relation to Principal Stockholder and/or “Principal
Stockholder Shareholder Meeting”, unless repugnant to the context thereof, includes electronic voting, postal ballot, postal
ballot through electronic voting, physical meeting(s), virtual meeting(s), or any other mode of soliciting the approval of the
members of Principal Stockholder in accordance with the provisions of the (Indian) Companies Act, 2013.
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3.
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Pursuant to Section 7(k) of the Support Agreement, the Parties hereby agree to the following amendments
to the Support Agreement:
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3.1.
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Section 1(a) of the Support Agreement stands deleted and replaced in its entirety with the following:
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Written Consent. The Principal
Shareholder shall, on or prior to the date hereof, provide the Parent with a certified true copy of the resolution passed by the
board of directors of the Principal Stockholder (such resolution, the “Principal Stockholder Board Resolution”)
(i) approving this Agreement and the disinvestment of the Principal Stockholder’s entire share of the Company Common Stock
(the “Principal Stockholder Divestment”) pursuant to the Merger and (ii) resolving to issue new notice through
postal ballot (such notice, the “Postal Ballot Notice”) to the members of the Principal Stockholder for their
approval of the Principal Stockholder Divestment pursuant to the Merger (such approval, the “Principal Stockholder Shareholder
Approval”) in accordance with the (Indian) Companies Act, 2013.
The Original Postal Ballot Notice,
dated as of July 20, 2020, was issued to all the members of the Principal Stockholder by July 23, 2020. The voting period under
the terms of the Original Postal Ballot Notice commenced on July 24, 2020 and is scheduled to end on August 22, 2020.
The Principal Stockholder shall
ensure that the Postal Ballot Notice is issued to each member of the Principal Stockholder no later than 9 pm Indian Standard Time
on August 12, 2020.
The Principal Stockholder shall,
within two (2) calendar days from the Execution Date, notify the Indian Stock Exchanges of the rescission/withdrawal by the Principal
Stockholder of the Original Postal Ballot Notice to the extent the items in the Original Postal Ballot Notice form the subject
matter of (a) this Amendment, and (b) the Merger Agreement, and issue a copy of such notification to the Parties.
If the Principal Stockholder obtains
the Principal Stockholder Shareholder Approval pursuant to and in accordance with the Postal Ballot Notice, Principal Stockholder
shall, (i) immediately, and in no event later than 24 (twenty-four) hours of such receipt, notify the stock exchanges in India
of the Principal Stockholder Shareholder Approval and (ii) in accordance with the CCC, deliver the Written Consent in the Form
attached as Exhibit A hereto within one (1) Business Day following the publication through the stock exchange in India of
the voting results of the shareholders’ resolution pursuant to the Postal Ballot Notice.
In the event of any amendment to
the terms or conditions of the Proposed Transaction, the board of directors of the Principal Stockholder shall take on record the
amended terms or conditions of the Proposed Transaction, and issue a notification to the Indian stock exchanges no later than 24
(twenty-four) hours of the execution of such amendment by the applicable Parties.
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3.2.
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Section 3(a) of the Support Agreement stands deleted and replaced in its entirety with the following:
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Principal Stockholder hereby agrees
to undertake, in accordance with applicable Law and Principal Stockholder’s organizational and formation documents, all
actions necessary to (i) notify the Parties immediately, and in no event later than 9 pm Indian Standard Time on September 13,
2020, of the result of the votes of its shareholders pursuant to the Postal Ballot Notice and (ii) provide to its shareholders
and the applicable Indian stock exchanges all communications that are required or advisable under applicable Law, in each case
promptly and, in any event, within the time periods (if any) required under applicable Law and Principal Stockholder’s organizational
and formation documents.
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3.3.
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The following is hereby added as the new Section 3(k) of the Support Agreement:
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RBI Consent. The Principal
Stockholder shall, and shall cause its Representatives to use their respective reasonable best efforts to, obtain the RBI Consent
as promptly as possible following the date hereof.
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4.
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Except as set forth in this Amendment, no other provision of the Support Agreement shall be deemed
to have been amended or modified in any manner by this Amendment. This Amendment shall be deemed to form part of and be incorporated
into the Support Agreement with effect from the Execution Date.
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5.
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This Amendment shall form an integral part of the Support Agreement and any reference to the Support
Agreement shall mean a reference to the Support Agreement as amended pursuant to this Amendment.
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6.
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Section 7 (Miscellaneous) of the Support Agreement is deemed to be incorporated into this
Amendment by reference and shall apply hereto mutatis mutandis.
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IN WITNESS WHEREOF,
Parent, Merger Sub, the Company and the Principal Stockholder have caused this Amendment to be duly executed as of the day and
year first above written.
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PARENT:
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MAGIC INTERMEDIATE, LLC
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/s/ A.J. Rohde
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Name: A.J. Rohde
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Title: President and Assistant Secretary
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MERGER SUB:
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MAGIC MERGER SUB, INC.
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/s/ A.J. Rohde
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Name: A.J. Rohde
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Title: President and Assistant Secretary
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[Signature Page to Amendment]
IN WITNESS WHEREOF,
Parent, Merger Sub, the Company and the Principal Stockholder have caused this Amendment to be duly executed as of the day and
year first above written.
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PRINCIPAL STOCKHOLDER:
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MAJESCO LIMITED
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/s/ Farid Kazani
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Name: Farid Kazani
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Title: Managing Director
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[Signature Page to Amendment]
IN WITNESS WHEREOF,
Parent, Merger Sub, the Company and the Principal Stockholder have caused this Amendment to be duly executed as of the day and
year first above written.
|
COMPANY:
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MAJESCO
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/s/ Adam Elster
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Name: Adam Elster
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Title: Chief Executive Officer
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[Signature Page to Amendment]
Annex F
AMENDED
AND RESTATED
SUPPORT
AGREEMENT
This
AMENDED AND RESTATED SUPPORT AGREEMENT (this “Agreement”), dated as of August 8, 2020 (“Execution
Date”), is entered into by and among the following individuals and entities:
Majesco
Limited, a public limited company incorporated under the laws of India bearing corporate identification number L72300MH2013PLC244874
and having its shares listed on the BSE Limited and the National Stock Exchange of India Limited, and having its registered office
at Mastek New Development Centre, MBP-P-136 Mahape, Navi Mumbai, Mumbai City, Maharashtra 400710, India (hereinafter referred
to as the “Company”, which expression, unless it be repugnant to the context or meaning thereof, is deemed
to mean and include its successors and permitted assigns);
Sudhakar
Venkatraman Ram, a resident Indian presently residing at 3502, Octavius, Hiranandani Gardens, Powai, Mumbai – 400 076, India,
with permanent account number AAIPR8221N (hereinafter referred to as the “Promoter-1”, which expression, unless
it be repugnant to the subject or context thereof, includes his legal heirs, legal representatives, successors, executors and
administrators and permitted assigns);
Ashank
Desai, a resident Indian presently residing at 2501, Odyssey 1, Hiranandani Gardens, Powai, Mumbai – 400 076, India, with
permanent account number ABNPD9264B (hereinafter referred to as the “Promoter-2”, which expression, unless
it be repugnant to the subject or context thereof, includes his legal heirs, legal representatives, successors, executors and
administrators and permitted assigns);
Sundar
Radhakrishnan, a resident Indian presently residing at 2501, Odyssey 1, Hiranandani Gardens, Powai, Mumbai – 400 076, India,
with permanent account number AFEPR3398P (hereinafter referred to as the “Promoter-3”, which expression, unless
it be repugnant to the subject or context thereof, includes his legal heirs, legal representatives, successors, executors and
administrators and permitted assigns);
Ram
Family Trust - I, a trust with Girija Ram acting as the Trustee thereof, with such Trustee presently residing at 3502, Octavius,
Hiranandani Gardens, Powai, Mumbai – 400 076, India, with permanent account number AADTR3245F (hereinafter referred to as
the “Promoter-4”, which expression, unless it be repugnant to the subject or context thereof, includes its
legal heirs, legal representatives, successors, executors and administrators and permitted assigns);
Girija
Ram, a resident Indian presently residing at 3502, Octavius, Hiranandani Gardens, Powai, Mumbai – 400 076, India, and with
permanent account number ADXPR6207N (hereinafter referred to as the “Promoter-5”, which expression, unless
it be repugnant to the subject or context thereof, includes his legal heirs, legal representatives, successors, executors and
administrators and permitted assigns);
Ketan
Mehta, a non-resident Indian presently residing at 3208 Glenhurst Court, Plano, TX 75093, USA, with permanent account number ACFPM3533R
(hereinafter referred to as the “Promoter-6”, which expression, unless it be repugnant to the subject or context
thereof, includes his legal heirs, legal representatives, successors, executors and administrators and permitted assigns);
Usha
Sundar, a resident Indian presently residing at 1301, Odyssey 1, Hiranandani Gardens, Powai, Mumbai – 400 076, India, with
permanent account number BZTPS5070D (hereinafter referred to as the “Promoter-7”, which expression, unless
it be repugnant to the subject or context thereof, includes his legal heirs, legal representatives, successors, executors and
administrators and permitted assigns);
Rupa
Ketan Mehta, a non- resident Indian presently residing at 3208 Glenhurst Court, Plano, TX 75093, USA, with permanent account number
ABLPM8613K (hereinafter referred to as the “Promoter-8”, which expression, unless it be repugnant to the subject
or context thereof, includes his legal heirs, legal representatives, successors, executors and administrators and permitted assigns);
Majesco,
a company incorporated in the state of California in the United States of America (hereinafter referred to as the “Subsidiary”,
which expression, unless it be repugnant to the context or meaning thereof, is deemed to mean and include its successors and permitted
assigns); and
Magic
Intermediate, LLC a Delaware limited liability company (hereinafter referred to as the “Counterparty”, which
expression, unless it be repugnant to the context or meaning thereof, is deemed to mean and include its successors and permitted
assigns).
Promoter-1,
Promoter-2, Promoter-3, Promoter-4, Promoter-5, Promoter-6, Promoter-7 and Promoter-8 are hereinafter collectively referred to
as the “Promoter Group” or “Promoters” and “Promoter” means any one of
them. Promoter-1, Promoter-2, Promoter-3, Promoter-4, Promoter-5, and Promoter-7 are hereinafter collectively referred to as the
‘Resident Indian Promoters’ and ‘Resident Indian Promoter’ means any one of them. The Promoters,
the Subsidiary, the Counterparty, and the Company are hereinafter collectively referred to as the “Parties”
and individually as a “Party”.
RECITALS
WHEREAS:
|
|
A.
|
As
of the Execution Date, the Company is the sole legal and beneficial owner of 74.07% of the paid up equity share capital of
the Subsidiary.
|
|
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B.
|
The
Subsidiary is classified as a material subsidiary of the Company under the provisions of the Securities and Exchange Board
of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, and the shareholding pattern of the Company
with respect to the Promoter Group as on date is reflected in Schedule I hereto.
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C.
|
The
Counterparty, the Company and the Subsidiary, in addition to certain other parties, have, on July 20, 2020, entered into an
Agreement and Plan of Merger (as the same may be amended or otherwise modified in accordance with its terms after July 20,
2020, the “Original Merger Agreement”) in order to provide, among other things, for the Merger and the
other Transactions (as defined in the Merger Agreement) (the “Proposed Transaction”).
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|
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D.
|
The
Proposed Transaction will entail the sale of the entire shareholding of the Company in the Subsidiary to the Counterparty.
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|
E.
|
The
board of directors of the Company through a resolution dated as of July 20, 2020 annexed hereto as Schedule II has
unanimously (a) approved the disinvestment of the Company’s entire share of the common stock of the Subsidiary (the
“Divestment”) pursuant to the Merger and approved this Agreement, (b) determined that the consideration
to be received by the Company in relation to the Divestment is fair, (c) resolved to recommend that the members of the Company
approve the Divestment pursuant to the Merger, and (d) resolved to issue notice through postal ballot (such notice, the “Postal
Ballot Notice”) to the members of the Company for their approval to the Divestment pursuant to the Merger (such
approval, the “Company Shareholder Approval”) in accordance with the Companies Act, 2013. The Postal Ballot
Notice is annexed hereto as Schedule III.
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|
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F.
|
References
to “meeting” or “general meeting” in relation to the Company and/or “Company Shareholder Meeting”,
unless repugnant to the context thereof, includes electronic voting, postal ballot, postal ballot through electronic voting,
physical meeting(s) or virtual meeting(s) of the members of the Company in accordance with the provisions of the (Indian)
Companies Act, 2013.
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G.
|
As
a part of voluntary and consensual understanding, and with the intent to formalize such understanding in writing, in relation
to the manner in which the Promoters shall exercise their votes in relation to the Proposed Transaction, the Parties entered
into that certain Support Agreement, dated as of July 20, 2020 (the “Original Agreement”), by and among
the Parties.
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H.
|
The
parties to the Original Merger Agreement are amending and restating the Original Merger Agreement in its entirety as of the
date hereof (the “Merger Agreement”).
|
|
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I.
|
Each
Promoter has received a copy of the Merger Agreement and has read and understood the same, and each Promoter acknowledges
that the mutual benefits to be derived from the Merger Agreement constitutes good, adequate, and valuable consideration for
entering into this Agreement.
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J.
|
The
Parties now desire to amend and restate certain terms and provisions of the Original Agreement as set forth in this Agreement.
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|
|
K.
|
The
board of directors of the Company through a resolution dated as of August 8, 2020 annexed hereto as Schedule IV has
unanimously (a) approved the Divestment pursuant to the Merger and approved this Agreement, (b) determined that the consideration
to be received by the Company in relation to the Divestment pursuant to the Merger is fair, (c) resolved to recommend that
the members of the Company approve the Divestment pursuant to the Merger, and (d) resolved to issue notice through postal
ballot dated as of August 8, 2020 (such notice, the “Revised Postal Ballot Notice”) to the members of the Company
for their approval to the Divestment pursuant to the Merger (such approval, the “Revised Company Shareholder Approval”)
in accordance with the Companies Act, 2013. The Revised Postal Ballot Notice is annexed hereto as Schedule V.
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|
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L.
|
In
consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, and intending to be legally bound hereby, and other good and valuable consideration,
the sufficiency and receipt of which is hereby acknowledged, the Parties hereby agree as follows:
|
1.
Voting.
(a)
Voting. Promptly upon the receipt of the Revised Postal Ballot Notice, and in no event later than September 11, 2020, each
Promoter shall, in his or its capacity as a shareholder of the Company, and to the fullest extent of his or its shareholding or
voting rights in the Company issue his or its unconditional and irrevocable assent to the Divestment pursuant to the Merger in
accordance with and pursuant to the terms of the Postal Ballot Notice. In the event that the Revised Company Shareholder Approval
is sought in a general meeting of the Company (such meeting, the “Company Shareholder Meeting”, including any
adjournment or postponement thereof), each Promoter shall, in his or its capacity as a shareholder of the Company, and to the
fullest extent of his or its shareholding or voting rights in the Company (i) be present, and remain present, in such meeting
for the purposes of constituting and maintaining quorum (in each case, including via proxy) and (ii) utilize all (and not less
than all) his or its voting rights in the Company to unconditionally and irrevocably approve, adopt and consent to the Divestment
pursuant to the Merger.
(b)
Shareholder Disapproval for any Competing Transaction or Proposal. During the Term, each Promoter, individually in his
or its capacity as a shareholder of the Company, hereby covenant(s) and agree(s) that, except as expressly permitted by this Agreement
and the Merger Agreement, such Promoter shall not consent to and shall vote against the direct or indirect disposal or Transfer
of all or any part of the shareholding of the Company in the Subsidiary (or any interest or voting right in such shareholding)
to any individual, entity or third party other than the Counterparty pursuant to the terms of the Merger Agreement, without the
prior written consent of the Counterparty, including, in the event that the Company or the Subsidiary is the recipient of any
proposal, agreement, transaction or other matter that is intended to, or would reasonably be expected to, prevent, interfere,
compete with, undermine or materially delay or affect the consummation of the Proposed Transaction (a “Competing Proposal”
or “Competing Transaction”).
(c)
Non-disposal of Shares; Voting Rights in the Company. On and from the Execution Date and until the completion of the Proposed
Transaction in accordance with the terms of the Agreement and the Merger Agreement, or, if earlier, the Termination Date, except
as permitted under the terms of this Agreement, no Promoter shall directly or indirectly (i) dispose of, or Transfer, or consent
to dispose of or Transfer, any or all of his, her or its shares in the Company; (ii) grant any proxy, power-of-attorney or other
authorization or consent or execute any agreement, arrangement, commitment or undertaking, whether or not in writing, in or with
respect to any or all of the shares or voting rights held by the Promoter in the Company (other than as contemplated by this Agreement),
with any such prohibited proxy, power-of-attorney or authorization purported to be granted by any such Promoter being null and
void ab initio, or (iii) deposit any or all of the shares or the voting rights held by any Promoter into a voting trust
or enter into a voting/vote pooling agreement or arrangement with respect to any or all of the shares or voting rights held by
any such Promoter in the Company. Any attempted Transfer of the shares or any interest therein, including any Transfer of voting
rights in the shares without a corresponding transfer of the shares itself, shall be null and void, and the Company shall refuse
to take any such Transfer of shares or voting rights, as the case may be, on record. Notwithstanding the foregoing, a Promoter
may Transfer, all or any of his, her or its shares in the Company for estate planning purposes so long as any transferee of such
shares agrees in writing (evidence of which shall be promptly delivered to the Counterparty) as a condition and prior to such
Transfer to become a party to, and be bound by, this Agreement as a Promoter hereunder.
2.
Additional Agreements.
(a)
Requisitioning a meeting of the shareholders of the Company: In the event (i) the board of directors of the Company fails to issue
the Revised Postal Ballot Notice to all its shareholders seeking the approval of the shareholders to the Divestment and the Proposed
Transaction pursuant to the Merger; (ii) fails to convene a general meeting of its shareholders seeking their approval to the
Divestment and to the Proposed Transaction or (iii) for any reason whatsoever (save for any adjournments thereof), the general
meeting so convened does not take place, the Promoter Group shall, as the legal and beneficial owner of 36.33% of the total paid-up
equity share capital of the Company requisition, and each Promoter shall individually procure that the Promoter Group does requisition,
the board of directors of the Company to convene an extraordinary general meeting in accordance with section 100 of the (Indian)
Companies Act, 2013 or issue a postal ballot notice for the approval of the shareholders of the Company to the Proposed Transaction
and the Divestment (such requisition, the Promoter Requisition). In the event the board of directors of the Company does
not, within twenty-one (21) days from the date of receipt of Promoter Requisition, proceed to call a meeting for the consideration
of that matter on a day not later than forty-five (45) days from the date of receipt of the Promoter Requisition, the Promoter
Group shall call and hold the extraordinary general meeting itself within a period of three (3) months from the date of the Promoter
Requisition (such meeting, Promoter Requisitioned Meeting), and each Promoter shall (i) be present for the Promoter Requisitioned
Meeting, and remain present throughout the duration of the Promoter Requisitioned Meeting, for the purpose of constituting and
maintaining quorum and (ii) to the fullest extent of his or its shareholding or voting rights in the Company issue his or its
unconditional and irrevocable assent to the Divestment and the Proposed Transaction pursuant to the Merger.
(b)
In the event of any dividend, subdivision, reclassification, recapitalization, split, split-up, distribution, combination, exchange
of shares, issuance of additional shares or similar transaction or other change in the capital structure of the Company affecting
the shareholding of the any Promoter or the Promoter Group (including, for the avoidance of doubt, the acquisition by any Promoter
of additional shares of, or voting rights in, the Company), this Agreement and the obligations hereunder shall automatically attach
to any additional shares or voting rights acquired by any Promoter.
(c)
The Company shall, no later than 2 calendar days from the Execution Date, notify the Indian Stock Exchanges of the rescission/withdrawal
by the Company of the Postal Ballot Notice to the extent the items in the Postal Ballot Notice form the subject matter of (a)
this Agreement, and (b) the Merger Agreement, and issue a copy of such notification to the Counterparty.
3.
Representations and Warranties of each Promoter. Each Promoter represents and warrants to the other Parties as to itself
as follows:
(a)
Title. The Promoter is the sole legal and beneficial owner of its or his respective shares and voting rights in the Company
as reflected against his or its name in Schedule I hereto. The Promoter has sole voting power with respect to all of his
entire shareholding in the Company, and no part of his voting power is subject to any voting trust, voting agreement or other
arrangement, except as contemplated by this Agreement. Other than an existing Encumbrance over 450,000 shares held by Promoter-1,
the shares held by the Promoter are free and clear of any and all Encumbrances (other than as created by this Agreement).
(b)
Classification as Promoter. Each Promoter is classified as a ‘promoter’/ ‘promoter group’ of the
Company in accordance with the (Indian) Companies Act, 2013 and the Securities and Exchange Board of India (Listing Obligations
and Disclosure Requirements) Regulations, 2015, and has been notified as a promoter/promoter group to the Indian stock exchanges.
(c)
Authority. Each Promoter has all necessary power and authority and has undertaken action necessary in order to execute
and deliver this Agreement and perform all of his, her or its obligations under this Agreement and consummate the transactions
contemplated by this Agreement.
(d)
Due Execution and Delivery. This Agreement has been duly executed and delivered by each Promoter, and constitutes a legal,
valid and binding obligation of the Promoter, enforceable against such Promoter in accordance with its terms.
The
representations and warranties of each Promoter in this Section 3 shall be deemed to be repeated and shall be required
to be true and accurate on each day until the termination of this Agreement.
4.
Representations and Warranties of the Company and the Subsidiary. The Company and the Subsidiary severally and not jointly
and severally represent and warrant to the other Parties as to itself as follows:
(a)
Organization and Qualification. Such Party is a legal entity duly organized, validly existing and in good standing under
the Laws of the jurisdiction in which it is formed or organized, as applicable.
(b)
Authority. Such Party has the requisite power and authority and has taken all action necessary in order to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(c)
Due Execution and Delivery. This Agreement has been duly executed and delivered by such Party, constitutes a legal, valid
and binding obligation of such Party, enforceable against it in accordance with its terms.
The
representations and warranties made by the Subsidiary and the Company in this Section 4 shall be deemed to be repeated
and shall be required to be true and accurate on each day until the termination of this Agreement.
5.
Termination.
(a)
Term. The term of this Agreement shall commence on the date hereof and shall immediately terminate upon the earliest to
occur of, without the need for any further action by any Party, (i) the mutual written agreement of the Parties, (ii) the consummation
of the Closing, and (iii) the date that is seven (7) months following the date of any valid termination of the Merger Agreement
pursuant to Article IX therein (the “Termination Date”, and the period of time from the date hereof to and
including the effective date of such mutual written agreement, in the case of the foregoing clause (i), the Closing Date, in the
case of the foregoing clause (ii), or the Termination Date, in the case of the foregoing clause (iii), the “Term”);
provided, that with respect to any termination of this Agreement pursuant to the forgoing clause (iii), (x) if the Company
Termination Fee is payable in connection therewith pursuant to the terms and on the conditions set forth in the Merger Agreement,
then for all purposes hereunder, (A) the Termination Date shall be the date on which the Counterparty or its designee, as applicable,
actually receives the Company Termination Fee and (B) the Term shall terminate on the date that is seven (7) months following
the Termination Date as adjusted pursuant to the foregoing clause (A); and (y) following the Termination Date, the terms and conditions
of this Agreement shall thereafter apply only to fifty percent (50%) of the shares or voting rights held by the Promoters in the
Company on a pro rata basis during the Term; provided, that no termination of this Agreement shall prevent any Party from
seeking any remedies (at Law or in equity) against any other Party for such other Party’s breach of any of the terms of
this Agreement during the Term.
(b)
Survival. Notwithstanding anything contained in this Agreement, the provisions of Section 5 (Termination); and Section
6 (Miscellaneous) shall survive the termination of this Agreement in all events and for all reasons whatsoever.
6.
Miscellaneous.
(a)
Notices. All notices, requests, instructions, consents, claims, demands, waivers, approvals and other communications to
be given or made hereunder by one or more Parties to one or more of the other Parties shall be in writing and shall be deemed
to have been duly given or made upon actual receipt, if delivered personally; three (3) Business Days after deposit in the mail,
if sent by registered or certified mail; upon delivery by email; or two (2) Business Days after deposit with an overnight courier,
if sent by an overnight courier. Such communications shall be sent to the respective Parties at the following street addresses
or email addresses or at such other street address or email address for a Party as shall be specified for such purpose in a notice
given in accordance with this Section 6(a):
If
to the Company:
Majesco
Limited
MNDC,
MBP-P-136, Mahape,
Navi
Mumbai – 400 710,
Maharashtra,
India
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Attention:
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Mr. Farid
Kazani
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Telephone:
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+91-22-6150
1800
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Email:
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Farid.Kazani@majesco.com
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with
a copy to (which shall not constitute notice):
Khaitan &
Co
One
Indiabulls Centre
Tower
1, 13th Floor
841
Senapati Bapat Marg
Mumbai,
400013
India
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Attention:
|
Sudhir
Bassi and Soumya Mohapatra
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Telephone:
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+
91 22 6636 5000
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Email:
|
sudhir.bassi@khaitanco.com
Soumya.mohapatra@khaitanco.com
|
If
to the Subsidiary:
Majesco
412
Mount Kemble Ave, Suite 110C
Morristown,
NJ 07960
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Attention:
|
Lori
Stanley
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Telephone:
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(973)
461-5200
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Email:
|
Lori.Stanley@majesco.com
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with
a copy to (which shall not constitute notice):
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112
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|
Attention:
|
Valérie
Demont and John Tishler
|
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Telephone:
|
(212)
634-3040
(858)
720-8943
|
|
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Email:
|
vdemont@sheppardmullin.com
jtishler@sheppardmullin.com
|
and
Khaitan &
Co
One
Indiabulls Centre
Tower
1, 13th Floor
841
Senapati Bapat Marg
Mumbai,
400013
India
|
|
Attention:
|
Sudhir
Bassi and Soumya Mohapatra
|
|
|
Telephone:
|
+
91 22 6636 5000
|
|
|
Email:
|
sudhir.bassi@khaitanco.com
Soumya.mohapatra@khaitanco.com
|
If
to the Promoter Group:
Mr. Ketan
Mehta
3208,
Glenhurst Court, Plano, Texas 75093
USA
|
|
Attention:
|
Mr. Ketan
Mehta
|
|
|
Telephone:
|
+1
972 5298206
|
|
|
Email:
|
ketan.mehta@majesco.com
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with
a copy to (which shall not constitute notice):
Mr. Ashank
Desai
2501,
Odyssey 1, Hiranandani Gardens, Powai, Mumbai – 400 076
Maharashtra,
India
|
|
Attention:
|
Attention:
Mr. Ashank Desai
|
|
|
Telephone:
|
Telephone:
+91 98211 14040
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Email:
|
Email:
ashank.desai@mastek.com
|
If
to the Counterparty:
c/o
Thoma Bravo, L.P.
600 Montgomery Street, 20th Floor
San Francisco, CA 91444
|
|
Attention:
|
A.J.
Rohde and Matt LoSardo
|
|
|
Email:
|
arohde@thomabravo.com,
mlosardo@thomabravo.com
|
with
a copy to (which shall not constitute notice):
Kirkland &
Ellis LLP
300 N. LaSalle Street
Chicago, Illinois 60654
|
|
Attention:
|
Theodore
A. Peto, P.C., Bradley C. Reed, P.C. and Aisha P. Lavinier
|
|
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Email:
|
tpeto@kirkland.com,
bradley.reed@kirkland.com, aisha.lavinier@kirkland.com
|
and
Trilegal
17th
Floor, Tower B,
Ganpat
Rao Kadam Marg,
Lower
Parel (West),
Mumbai,
400013
India
|
|
Attention:
|
Aniruddha
Sen and Rohan Singh
|
|
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Telephone:
|
+91
22 4079 1000
|
|
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Email:
|
aniruddha.sen@trilegal.com
rohan.singh@trilegal.com
|
(b)
Entire Agreement. This Agreement (including the schedules and exhibits referred to in this Agreement) constitutes the entire
agreement among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements,
negotiations, understandings and, representations and warranties, whether oral or written, with respect to the subject matters
hereof.
(c)
Certain Definitions. For the purposes of this Agreement, capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them
below or elsewhere in this Agreement:
“Business
Day” means any day ending at 11:59 p.m. IST other than a Saturday or Sunday or a day on which banks in the City of New
York, the State of California or India are required or authorized by Law to close.
“Transfer”
means, with respect to a share held as of the Execution Date or subsequently acquired by any Promoter, the direct or indirect
(a) transfer, pledge, hypothecation, encumbrance, assignment, exchange, transfer or other disposition (whether by sale, merger,
consolidation, liquidation, dissolution, dividend, distribution, operation of law or otherwise), either voluntary or involuntary,
of such share or any interest therein or the beneficial ownership thereof or (b) any agreement, arrangement, commitment or understanding
whether or not in writing, to effect any of the actions referred to in the foregoing clause (a) (in each case other than this
Agreement).
(d)
Remedies. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed
in accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement or to enforce specifically the performance of the terms and provisions hereof in addition to any other available
remedies that a Party may have at Law or in equity. Any requirements for the securing or posting of any bond with such remedy
are hereby waived. In the event that any Proceeding should be brought in equity to enforce the provisions of this Agreement, no
Party shall allege, and each Party hereby waives the defense, that there is an adequate remedy at Law.
(e)
Governing law and jurisdiction: This Agreement shall be governed by the laws of India. If any disputes, controversies or
claims arise amongst the Parties out of, or in connection with, this Agreement, including but not limited to, in connection with
the validity, interpretation, implementation or alleged breach of any provision of this Agreement (“Dispute”),
the Party raising the Dispute shall send a written notice to the other Party containing details of the Dispute (“Dispute
Notice”). The Parties shall endeavour to settle such dispute amicably. In case of the failure by the Parties to resolve
a Dispute within 20 calendar days (“Grace Period”) from the date of the Dispute Notice, any of the Parties
to the Dispute, shall have the right to refer such Dispute to arbitration (“Dispute Notice”) for final resolution
in accordance with the provisions of the Singapore International Arbitration Centre (“SIAC”), which rules are
deemed to be incorporated by reference in this Section 6(e). The Parties agree that the arbitral panel shall comprise of
3 (three) arbitrators, appointed in accordance with this Section 6(e). The Party making the claim shall appoint the first
arbitrator and notify the respondent of such appointment. Within 10 (ten) days of notice of appointment of the first arbitrator,
the respondent shall appoint the second arbitrator and notify the claimant of such appointment. Within 10 (ten) days of notice
of appointment of the second arbitrator, the first and second arbitrators shall appoint the third arbitrator (who shall be the
presiding arbitrator of the tribunal). In the event that any appointments or notices are not made in accordance with this Section
6(e) as and when specified herein, the SIAC shall make such appointments. The seat of arbitration shall be Singapore and the
place of arbitration shall be as determined by the arbitral panel constituted in accordance with this Section 6(e). The
arbitration shall be conducted in English. The award of the arbitral tribunal in respect of a Dispute shall be final and binding
on the Parties and shall be enforceable in accordance with its terms and shall be substantiated in writing. The arbitral tribunal
shall also decide on the costs of the arbitration proceedings. Nothing contained in this Section 6(e) shall prevent any
Party from resorting to judicial process if solely injunctive or equitable relief from a court may be necessary to prevent injury
to such Party or its Affiliates.
(f)
Amendment: No modification, alteration or amendment of this Agreement or any of its terms or provisions shall be valid
or legally binding on the Parties unless made in writing and duly executed by or on behalf of all the Parties hereto.
(g)
Further Assurances: Each Party shall do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other Party may
reasonably request from time to time in order to carry out the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby in the most expeditious manner possible.
This
Agreement has been entered into on the date stated at the beginning of this Support Agreement.
[Signatures
and schedules to follow]
Signed
and Delivered
For
and on behalf of Majesco Limited
/s/
Farid Kazani
Authorized
Signatory
Name:
Farid Kazani
Designation:
Managing Director
Signed
and Delivered
For
and on behalf of Majesco
/s/
Adam Elster
Authorized
Signatory
Name:
Adam Elster
Designation:
Chief Executive Officer
Signed
and Delivered
For
and on behalf of Magic Intermediate, LLC
/s/
A.J. Rohde
Authorized
Signatory
Name:
A.J. Rohde
Designation:
President and Assistant Secretary
Signed
and Delivered
For
Promoter-1
/s/
Sudhakar Venkatraman Ram
Name:
Sudhakar Venkatraman Ram
Signed
and Delivered
For
Promoter-2
/s/
Ashank Desai
Name:
Ashank Desai
Signed
and Delivered
For
Promoter-3
/s/
Sundar Radhakrishnan
Name:
Sundar Radhakrishnan
Signed
and Delivered
For
and on behalf of Promoter-4
/s/
Girija Ram
Name:
Girija Ram, as the Trustee of Ram Family Trust - I
Signed
and Delivered
For
and on behalf of Promoter-5
/s/
Girija Ram
Name:
Girija Ram, individually
Signed
and Delivered
For
Promoter-6
/s/
Ketan Bansilal Mehta
Name:
Ketan Bansilal Mehta
Signed
and Delivered
For
Promoter-7
/s/
Usha Sunder
Name:
Usha Sunder
Signed
and Delivered
For
Promoter-8
/s/
Rupa Ketan Mehta
Name:
Rupa Ketan Mehta
|
MAJESCO
412 MOUNT KEMBLE AVENUE,
SUITE 110C
MORRISTOWN, NJ 07960
|
|
CONSENT BY INTERNET - www.proxyvote.com
Use the Internet to transmit your consent
and to access the consent solicitation materials before the earlier of (i) 5:00 p.m. (Eastern Time) on October 12, 2020 and (ii)
the closing date of the merger. Have this consent card in hand when you access the web site and follow the instructions to obtain
your records and to create an electronic consent form.
CONSENT BY MAIL
Mark, sign and date this consent card and
mail it to Majesco, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
|
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
|
M79260-Y25045 KEEP THIS PORTION FOR YOUR RECORDS
|
|
DETACH AND RETURN THIS PORTION ONLY
|
|
MAJESCO
The
Majesco board of directors recommends that you deliver a written consent “FOR” the proposal set forth below.
The
undersigned acknowledges receipt of the consent solicitation statement which more fully describes the proposal below.
|
|
|
The Board of Directors recommends that stockholders CONSENT to the following proposals:
|
Do Not
Consent Consent Abstain
|
|
1. To
approve the Amended and Restated Agreement and Plan of Merger dated August 8, 2020, by and among Majesco, Magic Intermediate, LLC
and Magic Merger Sub, Inc., as the same may be amended or supplemented from time to time (the “Merger Agreement”),
and the transactions contemplated by the Merger Agreement, including the merger of Merger Sub with and into Majesco.
|
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INSTRUCTIONS:
TO CONSENT, DO NOT CONSENT OR ABSTAIN FROM CONSENTING TO THE APPROVAL OF THE PROPOSAL, CHECK THE APPROPRIATE BOX ABOVE. IF NO BOX
IS MARKED ABOVE WITH RESPECT TO THE PROPOSAL, THE UNDERSIGNED WILL BE DEEMED TO HAVE CONSENTED TO THE PROPOSAL.
PLEASE
DATE, SIGN AND MAIL THIS CONSENT PROMPTLY, USING THE ENCLOSED ENVELOPE.
__________________
|
|
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If held in joint tenancy, all persons must sign. When signing as attorney, trustee, executor, administrator, guardian or corporate officer, please give full title as such. If shares are held by a corporation, please sign the full corporate name by president or other authorized officer. If shares are held by a partnership or other entity, please sign the full partnership or other entity name by authorized person. Please sign, date and promptly return this written consent to Majesco by mailing this written consent to Majesco, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
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|
|
|
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Signature [PLEASE SIGN WITHIN BOX]
|
Date
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Signature (Joint Owners)
|
Date
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